Background. In 2010, Nautical Tours filed a petition with the department concerning its proposed operation of amphibious 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.
Following the 2007 order, Nautical Tours did not apply to the police commissioner for a sightseeing license.
In 2010, relying on G. L. c. 159A, § 1, Nautical Tours petitioned the department.
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.
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
It was not until 1975 that the Legislature amended the General Laws to include the language of G. L. c. 159A, § 1, second par., 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, second par. 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 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).
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.