Number 1 September 4, 1979

Number 1 September 4, 1979 Dean P. Amidon Commissioner Department of Public Works 100 Nashua Street Boston, MA 02 114 Dear Commissioner Amidon: As Commissioner of the Department of Public Works (Department), you have requested my opinion concerning certain matters involving the issuance of commercial motor vehicle weight permits by the Department. More specifi- cally, you have asked whether the Department had the authority on either July 1, 1956 or January 4, 1975 (the dates of enactment of the Federal-Aid Highway Act of 1956 and the Federal-Aid Highway Amendments of 1974, respectively) to issue what is referred to as "reducible load"' permits for the operation of commerical motor vehicles on the state highway system. For the reasons set forth below, I am of the opinion that the Department did possess that authority on the dates in question and I therefore answer your question in the affirmative. In order to answer your questions more fully, however, it is necessary to review at some length the factual and legal contexts in which your questions have arisen. RELEVANT FEDERAL LAW Congress enacted the Federal-Aid Highway Act of 1956, (the Act), 70 Stat. 378, revised, rennacted and codified by P. L. No. 85-767, 72 Stat. 885 (1958), 23 U.S.C. §101 et seq., for the purpose of developing a "National System of Interstate and Defense Highways" (the Interstate System). The Act, as origi- nally enacted and as amended, imposes certain conditions on the apportionment 'You explain in your request that a "reducible load" is one which can be increased or decreased by varying the number of units in the load. Examples are concrete, sand and gravel, or bulk liquid or petroleum products." In contrast, you refer to "irreducible loads" as consisting of a single unit load." such as a piece of machinery. P.D. 14 g9 of federal funds to the states, including restrictions on the weight of vehicles that may use the Interstate System. The portion of the Act which is relevant to the present issues is codified at 23 U.S.C. §127. Reduced to its essentials for present purposes, that section pro- vides a "grandfather clause" mechanism to allow vehicles to use the Interstate System even though the weight limits established by the section are exceeded. There are two components to the grandfather clause exception. First, the state must have established, by law or regulation, weight limits for the use of public highways in excess of the federal weight limits. Second, the state weight limits must have been in effect on or before July 1, 1956, or January 4, 1975, and the operation of vehicles up to the state maximum weights must have been allowed by the state on or before those two dates. A state which cannot avail itself of the grandfather clause exceptions, but which nonetheless authorizes or permits overweight vehicles to operate on Interstate highways within the state's borders, jeopardizes its right to receive apportioned federal highway funds. RELEVANT STATE LAW Two state statutes are particularly relevant to a determination of the question whether the Commonwealth is entitled to avail itself of the grandfather clause exceptions of 23 U.S.C. §127. These statutes are G.L. c. 85, §30 (hereinafter referred to as §30) and G.L. c. 90, §19A (hereinafter referred to as §19A), and must be examined in some detail. The provisions of §30 can be traced to the Acts of 1913, c. 803, §§1 , 3. The 1913 statute provided that no motor vehicle having a gross weight of fourteen tons or more could be operated on any highway in the state without first obtain- ing a permit from certain specified state authorities. Id., §1. The statue stated that the permits could be of general or of limited duration, could authorize travel generally or over specific routes, and could include any special conditions or provisions which the permit authority deemed necessary for the protection of highways and bridges. Id., §3. The substance of the language of the 1913 statue was not changed until 1925, when, with regard to vehicles weighing more than fourteen tons and travelling over "a way determined by the department of public works to be a through route," the state official authorized to issue overweight permits was specified to be the commissioner of public works. St. 1925, c. 180, §2. See St. 1922, c. 526; St. 1918, c. 116, §§1, 3; St. 1917, c. 344, pt. 5, §§39, 41. Subsequent amendments to §30 modified the weight limit of fourteen tons. See St. 1935. c. 30; St. 1931, c. 138, §1; St. 1930, c. 353, §1; St. 1925, c. 342, §2. In 1946, the Legislature enacted an exception to the weight limit provisions of §30. Chapter 397, §1 of the Acts of 1946 amended the General Laws by inserting G.L. c. 90, §19A, which authorized motor vehicles to operate on public ways at weights in excess of those prescribed in §30 and without the necessity of obtaining a §30 permit. Section 19A imposed its own restrictions on maximum permissible weights, however. As amended through 1972, §19A established a maximum gross weight of 73,000 pounds for vehicles travelling on public ways without a §30 permit. G.L. c. 90, §19A as amended through St. 1972, c. 126. Vehicles with a gross weight in excess of the §19A limits could still travel on public ways //a §30 permit had been procured. 90 P.D. 14 Numerous changes were made to §30 and §19A between 1946 and July 1, 1956. At this point, it is helpful to set out in the footnote below the relevant provisions of the two statutes as they appeared on July 1 , 1956.^ For the present purposes, no further significant changes were made to §30 or to §19A prior to 1974. In 1974 the Legislature, acting in response to, and substantially in conformance with the recommendations of a Special Commis- sion on vehicle weights,^ enacted c. 851 of the Acts of 1974. Chapter 851 added four new paragraphs to §30, the principal provisions of which were as follows: Motor vehicle owners or operators could apply to the commissioner of public works for a one-year permit allowing operation of the vehicle on the public ways at any requested weight, up to the gross vehicle rating established by the manufacturer of the chassis. The statute further provided: Such permit may be issued to allow the operation of any motor vehicle or semitrailer unit having three axles which with its load weighs not more than seventy-three thousand pounds, or any motor vehicle or semitrailer unit having four axles which with its load weighs not more than eighty-seven thousand pounds, or any motor vehicle or semitrailer unit having five or more axles which with its load weighs not more than ninety-nine thousand pounds, but not above such limits, nor in any event shall any such permit allow the operation of any motor vehicle or semitrailer unit which with its load exceeds the gross vehicle weight rating as established by the original manufacturer of the chassis; provided, however, that the commissioner of public works may issue one way or round trip permits for the carrying of certain irreducible loads, which may exceed the said gross vehicle weight rating, but only under such conditions and limitations as the commissioner of public works may prescribe. ^G.L. c. 85, §30. as amended through Si. 1951. c 568, provided that: Except as provided in section nineteen A of chapter ninety, no vehicle shall . . . travel or object be moved, on any public way, which weighs more than fourteen tons, or. in the case of a vehicle equipped with pneumatic tires, more than fifteen tons, without a permit from the board or officer having charge of such way, or, in case of a state highway, or a way determined by the department of public works to be a through route, from the commissioner of public works' provided, that no such permit shall be required for the operation of a vehicle havmg three axles, whether or not so equipped, which does not weigh more than twenty tons. . . . Such a permit may limit the time within which it shall be in force and the ways which may be used and may contain any provisions or conditions necessary for the protection of such ways from injury G.L. c. 90. SI9A. ai amended through St 1956. c. 61. provided that: Any provision of section thirty of chapter eighty-five to the contrary notwithstanding, a motor vehicle havmg no axles, which vehicle with its load weighs not more than twenty-three tons, and a semi-trailer unit or a motor vehicle having three or more axles, which unit or vehicle with its load weighs not more than thirty tons, may travel on a public way without a permit as required by said section thirty; provided, that no such motor vehicle or semi-trailer unit, the weight on any axle of which, measured at the ground, exceeds twenty-two thousand four hundred pounds, or. in the case of axles spaced less than six feet apart, eighteen thousand pounds, shall so travel without such a permit; and provided further that the gross weight of any such vehicle together with its load expressed in pounds shall not exceed that shown on the following table without such a permit. . . . Notwithstanding the foregoing provisions of this section, nor any contrary provision of section thirty of chapter eighty- five, a construction type motor vehicle having two axles, which vehicle with its load weighs not more than twenty-three tons, or a construction type semi-trailer unit or motor vehicle having three axles, or a semi-trailer unit or motor vehicle having three axles while carrying liquid petroleum products, which vehicle with its load weighs not more than thirty tons, may travel on a public way while engaged in hauling construction matenals or liquid petroleum products without a permit as required by said section thirty of chapter eighty-five; provided, that the gross weight of such vehicle as operated does not exceed the gross vehicle weight ratmg as established by the original manufacturer of the chassis; and provided, further, that the vehicle is duly registered in this commonwealth for such weight. ''The Special Commission, consisting of three members of the Senate, five members of the House of Representatives, and three persons appointed by the Governor, was created in 1973 "to investigate and study the longstanding and escalating overload." House Rep. No. 6164, at 5 (May 1974). After holding thirty-four hearings at which over 3.700 pages of sworn testimony and numerous exhibits were taken in evidence, the Commission issued its Report and its suggested legislation. House Rep. No. 6164. supra. P.D. 14 91 St. 1974, c. 851, §3 (emphasis supplied)." Chapter 851 was approved on August 14, 1974, and therefore its provisions became effective ninety days thereafter, on November 12, 1974. See Opinion of the Justices, 368 Mass. 889 (1975). In September, 1974, however, heavy-duty vehicle manufacturers notifed the Special Commission that they could not com- ply with certain certification and inspection procedures required by c. 851. See Special Commission, Second Interim Report, House Doc. No. 5350 (Dec. 1974) at 6. Moreover, the Department of Public Works apparently decided, just prior to November 12, 1975, that it would not issue permits under the increased weight limits established by c. 851. See id. at 6, 7. Consequently, several motor vehicle carriers sought and obtained a temporary restraining order from the United States District Court ordering the relevant state officials from instituting any proceedings for violation of c. 851. See id. at 6.^^ In response to these problems with the implementation of c. 851, the House of Representatives revived the Special Commission, see House Doc. No. 5292, and the Legislature eventually enacted new legislation — c. 494 of the Acts of 1975 — in response to the Commission's recommendations. See Appendix A to Special Commission, Second Interim Report, supra. Chapter 494 deleted from §30 the four paragraphs that had been added by c. 851. However, Chapter 494 added a new section, §30A, to G.L. c. 85 which included many of the essential provisions of the earlier statute. ANALYSIS OF THE STATE STATUTES Having canvassed the relevant statutory provisions - with particular attention to their content on July 1, 1956 and January 4, 1975 - I now focus on your specific questions: (1) Did General Laws Chapter 85 Section 30, Chapter 90 Sections 19A and 31 A, or any other state statute or regulation as they existed on July 1 . 1956 give the Department authority to issue reducible load permits on that date? (2) Did General Laws Chapter 85 Section 30, Chapter 90 Sections 19A and 31 A, or any other state statute or regulation as they existed on January 4, 1975 give the Department authority to issue reducible load permits on that date? As a preliminary matter, I note that your questions require an analysis of state law only; they do not involve the interpretation or application of the grandfather provisions of 23 U.S. C. §127, or of any other federal law or regula- tion. Your questions also focus on the authority of the Department under state law to issue reducible load permits; whether the Department actually issued such permits, and the implications, if any, under the federal grandfather provi- sion of the failure to exercise any such authority, are therefore considerations which are not directly relevant to your requests. But see 1958/1959 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 103, 104 (1959) ("right to issue" ^Section 8 of c. 851 amended §I9A to provide, inter alia, that a motor vehicle weighing up to 105 percent of the maximum gross weight allowed by the §30 permit would not be deemed to be operating in violation of §30. 5ln the words of the Special Commission: -The pnncipal point of the Order was that the alleged inability of thos^c carriers to secure certification and inspection from vehicle manufacturers prevented their obtaining the permits Accordingly the objective ol the Court was to suspend implementation of Chapter 851 until the problems presented could be resolved by legislative or judicial action." Special Commission. Second Intenm Report, supra, at 6. 92 P.D. 14 permits is controlling, rather than actual issuance of permits). 1 . The laws in effect on July I , J 956. A close reading of G.L. c. 85, §30 and G.L. c. 90, §19A, as those sections appeared on July 1, 1956, fails to reveal, in clear and unambiguous terms, the legislative intent with regard to the authority of the Department to issue reduci- ble load permits. Several observations may be made, however, which shed substantial light on the legislative intent. First, it is abundantly clear that the Legislature had invested the Department (through its Commissioner) with the authority to issue permits for the purpose of allowing vehicles to operate at weights greater than those specifically desig- nated in the statutes. This delegation of authority was board, circumscribed only by the instructions that "[s]uch a permit may limit the time within which it shall be in force and the ways which may be used and may contain any provisions or conditions necessary for the protection of such ways from injury." G.L. c. 85, §30, as amended through, St. 1951, c. 568 [lines 16-21]. Indeed, the great detail with which the Legislature addressed the specific weight limits for vehi- cles operating without a permit accentuates the significance of the delegation of authority to the Department to circumvent those specific weight limits consist- ent only with the exercise of reasonable discretion. See 1975/1976 Op. Atty. Gen. No 57, Rep. A.G., Pub. Doc. No 12 at 152, 153 (1976) (issuance of permits committed to discretion of Commissioner, subject to constitutional and statutory limits). Second, there is no explicit distinction in either statute between reducible and irreducible loads; on the face of the statutes, the permit authority would appear to extend to any kind of load. The specificity and detail of the statutes with regard to such factors as weight, length, number of axles, vehicle configura- tions and type of tire, belie any facile conclusion that the Legislature implicity assumed that crucial distinctions should be made on the basis of the type of load being carried. See, e.g.. Consolidated Dry Goods Co. v. United States, 180 F. Supp. 878, 882 (D.C. Mass. 1960) ("When the statute gives no indication that any more restricted meaning was intended and the ordinary and accepted inter- pretation of the words is in accord with the purpose of the statute, that meaning should be given to the term used in the statute."). Third, the language of §19A, taken together with that of §30, provides a positive indication that reducible loads were not intended to be excluded from the statues or afforded special treatment. Cf. City of Boston v. Massachusetts Bay Transp. Authority, Mass. Adv. Sh. (1977) 2588, 2593 (entire statutory scheme should be examined as a whole). Section 19A provided that: Notwithstanding . . . any contrary provision of [G.L. c. 85, §30], a construction type motor vehicle having two axles, which vehicle with its load weighs not more than twenty-three tons, or a construc- tion type semi-trailer unit or motor vehicle having three axles, or a semi-trailer unit or motor vehicle having three axles while carrying liquid petroleum products, which vehicle with its load weighs not more than thirty tons, may travel on a public way while engaged in hauling construction materials or liquid petroleum products without a permit as required by [G.L. c. 85, §30] . . . [under certain conditions] . P.D. 14 93 G.L. c. 90, §19A. as amended through St. 1956, c. 61 [lines 22-37] (emphasis supplied). Construction materials and liquid petroleum products are archetypical examples of reducible loads. The quoted provision of §19A therefore must be read as exempting certain reducible loads, under certain conditions, from the permit requirements that would otherwise be applicable. To conclude that redu- cible loads were not intended by the Legislature to be subject to the permit provisions of §30 would make the quoted provisions of §19A unintelligible, or. at the least, superfluous. It is well established that such a result must be avoided. E.g., Commonwealth v. Gove, 366 Mass. 351, 354 (1974); Com- monweahh v. Woods Hole, Martha's Vineyard and Nantucket S.S. Authority, 352 Mass. 617,618(1967). I conclude, based on my review of the statutory language as described above, that §§30 and 19A, as they appeared on July 1, 1956, contemplate the issuance of overweight permits for reducible as well as irreducible loads. Because this conclusion is not grounded upon clear and unambiguous statutory language, however, it is appropriate to consider extrinsic statutory construction aids to determine whether the unexpressed intention of the Legislature was to exclude reducible loads from the permit provisions. See, e.g.. Department of Commu- nity Affairs v. Massachusetts State College Building Authority, Mass. Adv. Sh. (1979) 1681, 1692. Compare Burke v. Chief of Police of Newton, Mass. Adv. Sh. (1978)425,427. Unfortunately, there is scant legislative history to aid in the interpretation of §30 or §19A notwithstanding the relatively frequent amendment of both sec- tions. An opinion of one of my predecessors, issued in 1925, does, however, address issues closely akin to those now under consideration and thus bears close scrutiny. In the course of interpreting G.L. c. 85, §30, as amended by St. 1922, c. 526, the Attorney General made the following observations: The purpose of the act was manifestly to protect the highways against vehicles or objects which with their loads weighed more than fourteen tons. The Legislature, however, recognized that it would be necessary at times to move over the highways objects weighing more than fourteen tons, which could not be taken apart, and authorized the issuing of permits to move such loads. In each case, however, the problem for the board or officer granting such permits is to determine whether such a permit is necessary.. This clearly involves a consideration of the facts in each case, and is not consistent with a suggestion that continuing permits may be granted generally for excessive loads for a period of time. The phrase "without //r.sr [emphasis in original] obtaining a permit" indicates that a permit is required for each specific load and that a general or continuing permit may not be given. 7 Op. Atty. Gen. 599, 600-601 (1925) (emphasis supplied except where indi- cated). My predecessor presents no support, or basis, for his observation that the loads referred to by the statute are those "which could not be taken apart." Moreover, the remark is made in an off-hand manner, in the nature of dicta; the focus of his attention was the time period for which permits could be issued 94 P.D. 14 rather than the type of load that was subject to the permit procedures.*^ It is possible that the Attorney General's remark was based on his perception that it was the established custom of those charged with enforcing and applying the statute to issue permits only for irreducible loads. Indeed, he makes just such an "agency interpretation" argument in support of his conclusion that continuing permits could not be issued.^ He does not assert, however, that it had been the custom not to issue permits for reducible loads.* Having carefully reviewed the extrinsic aids to statutory interpretation avail- able to me, I do not perceive any reason to read the statutes in an artifically restrictive manner. Therefore, I conclude that the language of the statutes re- quires the conclusion that, on July 1, 1956, the Department had the statutory authority to issue reducible load permits. 2. The laws in effect on January 4, 1975. As I have indicated, the Legislature in 1974 substantially revised the statutes, regulating weight limits on the state highways. Chapter 851 of the Acts of 1974 added four new paragraphs to G.L. c. 85, §30, which I have already described in some detail. Unlike the situation with regard to the interpretation of the 1956 version of §30 and §19A, there can be no doubt that c. 851 provides, on its face, clear authority to the Department to issue permits for reducible loads. It is unnecessary to resort to references to the legislative history of c. 851 to support my conclusion, for the statute itself states that: the commissioner of public works may issue one way or round trip permits for the carrying of certain irreducible loads, which may exceed the said gross vehicle weight rating, but only under such conditions and limitations as the commissioner of public works may prescribe. St. 1974, c. 851, §3. This permit authority to exceed the gross vehicle weight rating extended the general permit authority - applicable regardless of type of load - so as to allow the operation of vehicles for as long as one year at weights ^0 the extent that my predecessor's conclusion is pertinent to the Department's authority to issue such permits for reducible loads. 1 would express my disagreement with his conclusion The statutory phrase "without yirw obtaining "a permit, emphasized by my predecessor, had been amended prior to 1925 to read "without a permit." G.L. c. 85. S30. as amended by St 1922, c. 526. The very fact that my predecessor seized upon the word "first" as significant evidence of legislative intent belies the conclusion that its deletion by the Legislature can be ignored. Moreover, the plain language of the statute - as in effect in 1925 and in 1956 - establishes that the responsible official "may limit the lime within which [the permit] shall be in force." Based on the normal and usual meaning of these words, it must be concluded that a permit could be issued for two days, one week, one year, or whatever period the responsible official deemed advisable. 'The principle of law relied upon by the Attorney General - that a court should give weight to any reasonable construction of a regulatory statute adopted by the agency charged with its enforcement - remains a firm principle of statutory construction. E.g.. AmherslPelham Regional School Committee v. Department of Education, Mass. Adv. Sh. ( 1978) 2673, 2687. and cases cited. *It would appear, however, it may indeed have been the Department's custom prior to 1925, and until recent admendments of the statutes, not to issue permits for reducible loads. A search of Department records does not provide evidence that such permits were issued, and operators of vehicles subject to the permit provisions who have submitted briefs to me on this issue have not been able to produce any such permits. 1 do not view these facts as conclusive of the Department's authority to issue reducible load permits in view of the informal nature of the fact-finding involved and in view of the statutory language discussed above. It is also pertinent to note that a judge of the Superior Court of the Commonwealth enjoined the Department from refusing to accept delivery of overweight reducible loads in the context of construction contracts. Simeone Stone Corp.. et al. v. Commonwealth of Mass. et al., Suffolk Superior Cl., No. 98309 (1973) That decision appears to have been grounded on the fact that the Department had established a longstandmg practice - substantially predating July 1, 1956 - of allowing overweight construction vehicles to operate without a permit within certain limits, thus creating a "constructive" or informal permit procedure for reducible loads. Clear, the actions or customs of officials charged with enforcing a statute cannot effectively amend the statute or "estop" attempts to enforce the statute according to its terms. See, e.g., Doris v. Police Commissioner of Boston. Mass. Adv. Sh. ( 1978) 416, 423-424. Nonetheless, the facts of the Simeone Stone case lend support to one or both of the following conclusions: that the Department believed that it had authority to allow overweight reducible loads to operate on the state highways; or that the court found the practice of the Department to be inconsistent with the notion that the statute precluded the operation of overweight reducible loads. P.D. 14 95 up to the gross vehicle weight rating. The clear inference is that reducible loads fall within the general permit authority.^ Chapter 851 became effective on November 12, 1974.'° It would therefore inexorably follow that the Department had authority under c. 851 to issue reducible load permits on January 4, 1975, but for the unusual subsequent course of the Legislature's actions on the overload problem. Section 15 of c. 494 of the Acts of 1975, an emergency act approved on July 15, 1975, suspended the operation of c. 851 until September 1, 1975. In addi- tion to making substantive changes to the provisions of c. 851, as 1 have previously noted, c. 494 proved that the suspension was effective retroactively as of November 12, 1974 - the effective date of c. 851. It would therefore appear that the intent of the Legislature was to retrace its steps and nullify the operation of c. 851 from the period beginning November 12, 1974, through the effective date of c. 494, and until September 1, 1975.'' These legislative events pose the difficult question whether c. 851 can be said to have vested "authority" in the Department to issue reducible load permits notwithstanding the subsequent action of the Legislature in retroactively suspending the effective date of c. 851. 1 need not decide this issue, however, in view of my conclusion that the Department had authority to issue reducible load permits on July 1, 1956. 1 have found no indication that the Legislature acted in any manner to restrict or revoke the Department's authority to issue permits between July 1, 1956 and January 4, 1975. It therefore follows that the Department had authority on January 4, 1975, as well as on July 1, 1956, to issue reducible load permits. Very truly yours, FRANCIS X. BELLOTTI ATTORNEY GENERAL