*1 C. 259 v. P. S. 1966] INC., v. LINES, TRUCK ASSOCIATED SERVICE COMMISSION. PUBLIC op the Court. Decision of Public Convenience Service Commission—Certifícate 1. Public Necessity—Redetermination. and reversing public service of circuit court Order public and convenience authorizing of certificate of transfer necessity cause ordered remanded reversed and is ordered reopening proofs and redetermination. commission for Dissenting Opinion.
Kelly O’Hara, JJ. and op — — — Carriers Orders Burden Service Commission 2. Public Proop. party service com- complaining an order The satisfactory showing by clear and the burden mission has complained proof court the order in the circuit (GLS 1961, 479.20). or unreasonable § unlawful Reports. Carriers'—Mileage 3. report purpose this State must Motor carriers domiciled for mileage assessing in this State ton-mile taxes their all [1] [3] [4] [5-9, [2] [34] [30] '10,11] '12,13] '14, V6, 27, '28] 25] 43 13 Am Jur 7 2 13 Am Jur 13 Am Jur 31] Am 5 Am Jur 15-24, 29, 13 Am Jur 2 Am Jur 2 Am Jur Am Jur Am Jur 13 Am Am 13 20 Am Jur, 2 2d, Publie Utilities Am 2d, 2d, References 2d, 2d, Appeal 2d, 2d, 2d, 32, Jur Jur Jur 2d, Carriers § Automobiles Administrative Law § Jur 33] Administrative Carriers § Administrative Law 765. Carriers § 2d, 2d, 2d, Carriers 2d, 13 Am Jur Carriers § Courts § Carriers Administrative Law 27. for Points 74§ 91 et 98 et Error § 183 et et Services 21. 77 et 20 2d, Law Highway seq. seq. seq. et § Carriers 1009 seq. seq. seq. §§ 473 § 455-457. Hbadnotes et et Traffic seq. seq. § 95 et § et 69. seq. seq. [Max'. 1948, (GL §478.4; intrastate interstate both traffic 1963, 182). 4a, 5a, No 259, PA as added No PA §§ of Orders. Law—Construction 4. Administrative body statutorily entrusted created Supreme accords the Court *2 language import regulation plain the the with motor carrier of used its order. Necessity. and of Public Convenience 5. Carriers—Certificate finding that in- public service commission Order defendant of as a motor carrier its service not discontinued tervenor had necessity was public and convenience under its certificate of 1948, (CL by proper operation law, held, 476- § not revoked of .18). Necessity— and Public Convenience 6. of Same—Certificate Abandonment. furnishing under as a motor carrier An to abandon service intent necessity proper public is a convenience and a certificate of 476.13). only (CL test abandonment is the issue where Necessity—Con- of Public Same—Certificate Convenience 7. tinued Service—Evidence. does not es- in interstate commerce continued service of Proof public convenience tablish service under continued certificate of statutory necessity provision that motor under carrier of act abandon no common motor carrier authorized the should act, the since interstate or discontinue service established under (CL 1948, may statute not be established under a State service §476.13). Commerce. 8. Same—Interstate by a carrier i/n interstate service motor The establishment of grant public dependent upon is a commerce the certificate of of necessity by interstate commerce com- the convenience authority. Congress delegated such mission to which Necessity—Rev- of Convenience Public Same—Certificate ocation. resumption suspended service The that a motor carrier’s of fact might overcrowding supplied service to those who had cause of during suspension shippers transportation the service to public commission con- not a winch the service is factor determining the carrier has so discontinued sider in whether public a revocation its service as to certificate of effect of necessity (CL 1948, law 476- convenience and as a matter of .18). n 26Í v. P. S. C.
10. Public Service Commission—Motor Carriers—Statutes. only powers relative commission exercises those delegated, expressly and has carriers to it statute to motor grant authority transportation establish a no broad State policy. 11. Same—Motor Carriers—Statutes. Supreme wisdom or to determine the It is not Court legislative power pub- efficacy upon limitations grant a the commission lic service failure policy grant transportation power to State broad establish a respect to motor carriers. with Carriers—Operation. 12. Carriers—Motor carrier, necessity consignor, consignee, and a a must be a There meaning “operate” carrier the motor in order to within the act. Service—Consignor—Commodities—Point of Ori- 13. Same—New gin or Destination. act authorized under motor carrier A new serviee if rights, carrier, prior acquisition can thereafter previously consignor consignee have not or a it could serve a commodity previously transport served, not it could or can *3 origin point it carried, destination or can serve or have previously could not have served. Cases. 14. Courts—Overruled Com- George Alger Company v. Public Serviee F. The ease of as to 104, is overruled to avoid mission, Mich 3S9 confusion law, although value, where, statement a correct its citable of misapplication in that ease. that law to the was a facts of Carriers—Finding of Fact 15. Public Service Commission—Motor of Service. —Abandonment—Discontinuance finding carrier public that motor order service commission’s The necessity had public and convenience holder certificate of of contrary provisions to service not abandoned or discontinued finding specific a act constitutes the motor carrier fact of of that 1948, §476.13; GLS (CL not violated the statute was 1961, §479.30). of Public Carriers—Certificate Convenience 16. Same—Motor Necessity—Unlawful. and provision giving statute Unlawful, the term is used circuit as of public jurisdiction review service commission’s to order court public motor carrier’s pertaining common to certificate of necessity requiring complainant a to and show and convenience [Mai. 239. so char- satisfactory the order be evidence that clear and application interpretation or acterized, means an erroneous of facts, permissible properly established law from inferences 1961, 479.20). (CLS § facts Convenience of Public Carriers—Certifícate Same—Motor 17. Necessity—Unreasonable. and giving provision statute Unreasonable, is used the term public jurisdiction service commission’s to review circuit court public pertaining common motor carrier’s certificate of requiring complainant to necessity show a and and convenience satisfactory be so charac- the order evidence that clear and jurisprudence, arbi- being means terized, in our a word art totally unsupported and admissible trary, capricious, or 1961, 479.20). (CLS admitted evidence § of Service. Carriers—Continuance Same—Motor 18. public that the carrier commission service admitted before Proof equip- mileage reports, its had continued certificated file tariffs, some evi- ment, proper and had in and effect force (CL discontinued had service not been dence that intrastate 476.1$, 1961, 479.20). 478.4; 1948, CLS §§ Court—Pinding Carriers—Circuit of Pact—Evi- 19. Same—Motor dence. public court on review service commission's order circuit The revolting public motor common carrier’s relative certificate of original necessity not malee an convenience inference had discontinued the service carrier of fact statutory specifically period, had where made finding statutory nondiscontinuance of fact finding supporting (CL either and there was evidence 478.4; 1961, 479.20). 476.13, CLS §§ Carriers—Certificate of Public Convenience Carriers—Motor Necessity—Abandonment—Discontinuance. discontinue, provisions as used terms abandon and to revocation act relative motor carrier certificate of necessity synonymous not treated as are convenience 476.1.3). (CL 1.948,§ Necessity—In- Convenience of Public 21. Same—Certificate tent. *4 outright re- service carrier’s discontinuance motor A common of necessity public and convenience its quired under certificate of previous public days, the without than more of for irrespective commission, is violative the statute service of of 1948, 476.13). (CL § intent v. P. C. S. 22. of Service Commission—Motor Carriers—Certificate Public Necessity—Inferences—Circuit and Convenience Court. Public testimony proceeding to de- adduced in fact from Inferences of a its motor carrier had discontinued termine whether common necessity public and a convenience service under certificate of commission, prerogative public not are the initial service of commission, on the order circuit court review of of judge was witnesses, and since the commission observed credibility (CLS 1961, 479.20). their § of 23. Carriers—Motor of of Pub- Carriers—Revocation Certificate Necessity—Evidence. and lic Convenience shipments were in intrastate commerce made Fact no for days, period motor carrier or that common in excess of discouraged type ships and none a 10- a certain of traffic proof day not, alone, dis- period, does constitute conclusive of public convenience continuance service under certificate of of necessity matter law and so as revocation as a effect (CL 478.IS). 1948, § Carriers—Certificate Service Commission—Motor Public Necessity. Convenience and Public sought carrier’s cer- Complainants common motor who have necessity public declared void held, and convenience tificate of satisfactory presented, clear and not show under record commission, public service evidence that the order finding un- not been abandoned or discontinued had service 1961, 479.20). (CL 476.13; CLS reasonable § — n — — Motor Circuit Court 25. Costs Public Service Commission Necessity — — of Public Convenience Carriers Certificate of Statutes. Construction appeal in suit to declare motor carrier’s are allowed on No costs void, necessity public cir- where convenience certificate of affirming, re- instead to enter its order cuit court is directed commission, versing, con- the order 479.20). (CLS 1961, is involved struction statutes Opinion.
Separate J., Adams, Kavanagh, M. JJ. T. C. and Souris Law—Findings Fact—Evidence—Review 26. Administrative Court. findings Generally, upon are administrative conclusive of fact evidence, court, reviewing supported if *5 377 259, Facts—Misapplication. op Same—Findings 27. order that an administrative reviewing set aside court A agency by misapplication an administrative upon a ie based of applicable' law. to the facts found Interest—Regulation. Carriers—Public Carriers—Motor 28. property passengers is and carriers motor business The of of regulation public and a reason interest with a for affected adequate public commission is to insure service the them of 1948, 479.1). (CL transportation § motor facilities op Carriers—Voluntary Curtailment Service. 29. Same—Motor is so motor carrier Voluntary service curtailment of periods in excess services are rendered that no drastic of for public days automatically con- the revolees certificate of necessity upon the the commission and and venience confers perform service applicants such power to authorize other to public as determined with needs in accordance of 476.IS). (CL 1948, § Opinion. Separate Smith, Cases. Courts—Overruled 30. George Alger Company v. Publie Commis- case F. Service of 104, to its sion, is overruled to avoid 839 Mich confusion although law, value, where, it a correct statement citable of misapplication in that case. that law to the was a facts of Necessity— of Public Convenience Carriers—Certificate 31. op Discontinuance Service. outright service re- motor carrier’s discontinuance A common of necessity public quired under its convenience certificate of public days, previous order more than 10 without of for irrespective commission, is the statute violative 1948, (CL 476.13). intent Necessity op — — Certificate Public Convenience 32. Same Abandonment of Service. necessary show abandon service under It to an intent to necessity public motor carrier’s convenience certificate of in order use as a basis revocation abandonment (CL 476.13). certificate Law—Opinions—Orders. Administrative ought agencies Opinions and orders administrative reflect expertise clearly application pos- such bodies sess. v. P. S. C. Findings — — 34. Public Service Commission Motor Carriers Fact. 'finding had that Vie service commission A circuit court’s applying would not erred in the lato to facts found independent finding permit malee a new and the court respect but he must remand Vie matter with fad *6 relative to a motor carrier’s convenience certificate of necessity, redetermination it in and to the commission for light opinion (CL 1948, law in the court’s set forth 476.IS). (Marvin J.), Ingham; Appeal from Salmon J. February (Calendar 1965. 46, No. 4, Submitted 50,670.) March 1966. No. Decided Docket complaint by Inc.; Truck Lines, Bill Express Company; Inc.; Smith, Lakes Earl C. Great Company; Ogden & Interstate Motor Moffett System, Freight Inc.; Line, Inc.; Truck In- Dundee Trucking tercity Trucking Inc.; Service, United Rumpf Inc.; H. & Service, Inc.; Lines, C. Sons Inc.; Cartage H. and & Johnson, W. Ford G. Com- corporations, Michigan Michigan against pany, all to set aside an order of Public Service Commission to find that the certificate of commission, defendant convenience and necessity Freight Transit of Yellow revoked, be and defendant commis- Lines, Inc., enjoined authorizing permitting from sion be operations by Yellow Transit reinstitution of Freight transferee, under the Lines, Inc., or its cer- necessity. tificate of convenience and Jones Trans- Company plaintiff. Yellow Trans- fer intervened as Transport, Freight Inc., Inc., Lines, and Central Judgment plaintiffs. defendants. for intervened as appeal. Intervening Reversed re- defendants and entry remanding matter to' manded for of order reopening proofs Public for Service Commission redetermination. 377 Mich (John & Bieneman M. Veale and
Matheson, Dixon counsel), Joseph Lavey, plaintiffs for other than Company. Transfer Jones Moody (Robert Fames, & Petrillo A. Sullivan, counsel), Kerwin, Jr., Frank J. for Sullivan intervening plaintiff; Company. Jones Transfer (Arthur Prewitt Clark, Klein, Winter, & Parsons counsel), Boynton Shaver, Alan M. for in- P. Freight tervening Lines, Yellow Transit defendant Inc.
Snyder, (George & Ewert W. Loomis intervening Loomis Parsley, counsel), D. for de- William Transport, Inc. fendant Central (dissenting, remand affirm O’Hara, Ingham commission). appeal from the coun- This ty that court court order of circuit reviews *7 finding Michigan pub- and reversed a vacated lic commission. service finding the commission was: The ment or discontinuance should result such [*] “Accordingly, “"We [*] 3» as to result of more have are not been, positive convinced, in abandonment. we that the action of the carrier was find that Yellow Transit action than however, be found as a only * * * is drastic here indicated. Abandon- Freight though not abandoned or discontinued serv- Lines, has Inc., contrary provisions of the motor carrier ice act.” contrary finding. made The circuit court
The herewith forth: thereof is set substance deliberately avoiding “Obviously if a carrier eventually when it the time arrives intrastate traffic v. P. S. C. Dissenting by O’Hara, logical not be tendered such movements. will happened inference is that this is what in this case. opinion equivalent Its conduct in our to an out- right refusal.” - provides: The involved statute1 commonmotor “No carrier authorized this act operate any shall abandon or discontinue provisions established under the of this act without Any an order of the commission. certificate under days which service is for more discontinued than 10 previous without the order of this commission au- thorizing the shall same be deemed to be revoked any upon part without action of the commission.” Appellee-carriers, May 17, filed on 1961, a com plaint requesting upon that the commission enter investigation operation of the nature of the con ducted intrastate Yellow,2and that it enter its specific finding segments cer Yellow’s necessity tificate of convenience and were by operation Request revoked of law. was further by eliminating made to from amend certificate there alleged authority specified dormant between Michigan points. Yellow answered. The matter hearing. days, was set for took For 3 the commission testimony and received exhibits. Thereafter, record-supported it made its determination. It is policy by appellees claimed to have resulted in the abandonment or discontinuance of service came their attention when Yellow made over purchase tures them to their intrastate certificate equipment. Appellees and some their claim that investigation operation, they after convinced the continued of Yellow’s were
authority lapsed they had dis negotiations purchase. hearing appellees’ complaint part,
A on was, *8 adjourned October 25, 1961, held and for further 1 2 1948, (Stat 22.546). CL Aim 476.13 Freight designated Yellow Transit Lines will be so herein. 259. Dissenting Opinion by O’Hara, amended thereafter, appellees Shortly
hearing. substantially that to allege complaint their pending had service in Michigan all Yellow’s intrastate been discontinued. the held before were hearings
Further record sup- was 1961, and and December 20 21, January 29, taken 1962. a plemented by deposition poten another had interested Meanwhile, Yellow Satisfactory Inc. Transport, tial Central purchaser, appli and an upon agreed were apparently terms was to Central authority cation transfer Yellow’s to transfer proposed the commission. The filed with 28, of May bulletin3 was included the commission’s a pro instanter wired 1962. for appellees Counsel hearing question on the requested test and nor hearings held, find no alleged dormancy. We deposi after record, other supplements 29,1962. tion taken January protest their The day following telegraphic a filed bill of com- application, appellees transfer court Ingham in the circuit plaint county alleging, in- belief, on information and the commission hearing, without the trans- tended, prior approve fer institution of service Central permit route. ac- Transport They over Yellow’s intrastate their with a companied prayer injunctive bill A relief. order was issued temporary restraining 1963, the court on June December 24, On court entered wherein judgment the circuit certificate of convenience decreed “void, here necessity invalid, involved was law.” From that judgment, by operation revoked taken. appeal validity issue here is or in- the immediate
While certificate, the concerned superseding validity is the nature scope judicial legal principle publication roughly comparable A court’s doeket. cominission *9 v. P. S. C. 269 Associate]] Dissenting J. by O’Hara, Ingliam by comity court circuit the orders review Michigan public commission. procedure appeal governing the instant case upon proof provides shall be “the burden of the that [appellees by here] complainant to show clear and satisfactory the order of the that commis evidence complained unlawful or unreasonable.” of is sion prescription any legislative not is rendered This easier complicated compound by the to when quixotic following language :4 original party “Any introduce to such suit transcript of to the evidence evidence offered to said addition * * * upon If, commission. the action, evidence shall be introduced trial of such by to be different from which is the court found hearing upon commission, before the or offered proceeding before to thereto, court, additional parties judgment, in such action render stipulate writing a unless contrary, transmit to the shall * * * copy evidence to the such commission. may, upon receipt and consideration The commission of modify, amend, or rescind its alter, evidence such report action to the court order and shall thereon days receipt 10 such evidence.” within from the (Emphasis supplied.) apply put A traditional circuit court is hard proceeding concepts to a of administrative review empowered original receive in which it is also evidence.
Working hand, however, with the at we tools opinion judgment. the circuit court’s review plaintiffs-ap- the burden of the statute it was Under pellees satisfactory evidence, clear and show, was unlawful the order of the commission reference this statute is or No unreasonable. questions of “law” between made to distinctions latter the “conclusiveness” and of “fact” toor Supp 22.585), Cum (Stat Ann 1963 CLS 479.20 Dissenting Opinion O’Hara, when found the commission. No additional testi- mony taken in circuit court. We therefore transcript testimony must determine whether the up and the exhibits which made the record before satisfactory contained “clear and which showed evidence” commission’s proof be unlawful unreasonable. The burden of *10 statutorily showing upon complainants- is of so appellees. they rely prin- To burden, sustain this in cipal part on their claim that Yellow discontinued days service under its certificate for more than 10 prior approval. without support they rely In of on this claim both exhibits commission, received in before the evidence testimony. purport of the is exhibits that after January 1, Yellow had so curtailed intra- its virtually short-haul it state service that was non- July existent, for the and that June months of year shipments originated of that no intrastate were any Michigan of its terminals. The oral testi- mony relied on of consists admissions elicited on testimony cross-examination of witnesses, Yellow’s employees employees former thereof and that of of competing carriers, of all of which it is claimed es- incontrovertibly appellant tablished that did Yellow Michigan as matter fact discontinue intra- its operations. state short-haul says, contra, Yellow drastically Per it did effect, operations curtail intrastate which were shown analysis unprofitable; to have been it did adopt management policy a studied discourage type traffic; it this closed certain of its terminals duplications purehaser- were which facilities of Transport; arranged Central other with carriers pick up any shipments short-haul intrastate which were tendered it, but it neither abandoned nor dis- continued service within the
meaning of the statute. v. P. S. C. O’Hara, Opinion by Dissenting complications of the instant case arises of the One mileage by reporting certificated method from the intervening appellant-commission. to the carriers Under its must Michigan requirement, domiciled carriers assessing purpose report ton-mile for mileage, Michigan both in inter- all their taxes appellees It the claim of traffic.5 and intrastate reported by mileage Yellow for inter appellants shipments, contend while state mixing freight intra- interstate reason mileage reported could as well unit, in the same be found mileage for for intrastate inter to be state. experienced examiner for the able and was That the aware of the conflict is disclosed commission the excerpt following from the record. Lawrence complainant- Knapp, witness called as appellees, testified: reports you inspected, mileage Mr. “Q. The they any Knapp, contain breakdown between did operated Michigan? miles and intrastate
inter- *11 way segregating “A. there is no intrastate No, [and] reported wholly intra- that which is miles, points Michigan, operations in between state origin operation which have an interstate that Actually, Michigan. it in is con- or destination reported here have that all miles on could ceivable been interstate. King. “Examiner could intrastate? Or be
“A. intra.” Or by experienced time was devoted
Considerable question judge to whether the trial as before the one of abandonment discontinu- commission was question That ance. this was also im- considered No .563(1), 22.564(1)]).—Reporter, [5] CL [182] superseded by 1948, (CL 1948, 478.4 PA §§ (Stat 478.4a, Ann No 254 478.5a 1961 Cum §§ [Stat 4a, 5a, Ann Supp as added § 22.562). Repealed Cum by Supp PA 1963, 22- Dissenting Opinion by O’Haka, J. all able by regulatory portant counsel in the is disclosed these from excerpts pretrial case summary: other than appellees
Mr. Yeale (for Jones Trans- legal position after that no fer), stating his subjec- tive intent need be shown where the claim is discon- rather than abandonment, tinuance said: “The if position second would be that the order any is viewed as factual that there finding was no discontinuance, which we don’t be, believe could if it in but were viewed that that it is not light sup- * * * evidence. ported by any “Mr. Elmer appellee Jones [for Transfer]. only issue of fact that I think really contested— I think all the are in parties agreement ex- as hibits that offered, were no one challenges the credi- bility the exhibits—but there is an issue of fact as to what some of the exhibits show. One of the exhibits, for example, was offered respondent Yellow Transit, defendant in- intervening here, in dicating operations some certain areas Michi- gan they contended were intrastate commerce and would thus their support argument op- that erations had fact been conducted during certain periods time, whereas evidence was offered by the plaintiffs, including plaintiff, intervening show that operations these were in fact operations of interstate commerce conducted under authority issued the interstate commerce commission and thus would not an support allegation of operation under the Michigan That mind my authority. * * * really is the only issue that there is. of fact “Miss Boersma. I can’t think of other any issue of fact and I don’t know whether that is. I doubt that is an issue of fact much as issue * * * law in this instance.
“Mr. Elmer. Well, I say there is no argu- ment as to the exhibits. There is an as to *12 argument * * * the interpretation. v. P. S. C. Dissenting Opinion by O’Hara, agree commission]. [for I “Mr. Gibson defendant of the issue of law, with Mr. Yeale’s statement but additional comment with with this reference * * * applied whether the commission the— * * * * * * wrong legal test. It was indicated that there must be an intent to abandon under the make statement, statute. The commission did that in addition the found that in but there was no discontinuance of service. So what I commission fact saying am The stated two is this: commission rea- finding that the certificate of sons Yellow Transit (1) abandoned, was not that there was no discon- provisions tinuance service within the of the (2) statute and intent there was no to abandon serv- * * * ice. pur chaser-appellant [for “Mr. Davis Central Transport]. agree I would with the statement made by Mr. Gibson.” appears question Thus, one to be decided whether the order us is of the commission intro- duced into of issue of discontinuance element by appellees, intent, claimed and so found compelled disagree the trial court. We are with judge. trial learned read the commission We distinguished clearly order to have between aban- donment and discontinuance. reads: clearly
“There must be established intent to abandon we before should abandon- find such (Emphasis supplied.) ment has been effected.” legislatively body must accord to the
We created regulation very with entrusted motor carrier at import plain language. least the of its own Had the applied the test of intent to the issue of discontinuance, we think it not have con- would fined its use of the word sentence which it only dealt with abandonment. hold that We under wording the commission did not order, apply legal test. Our erroneous conclusion *13 377 Opinion by O’Hara, Dissenting J. by supported, by think, we the use
further the com- language concluding alternative mission of the its sentence:
“Accordingly, Freight find that Yellow Transit we Lines, ice not abandoned Inc., has discontinued serv- contrary provisions to the of the motor carrier (Emphasis supplied.) act.” question We come then to the other decisional presented. anWas issue of fact created under the record made before to whether the commission as irrespective any Yellow, ice for more than 10 intent, discontinued serv- prior
days without order of the commission? reject appellants’
At the outset we contention that proof meaning of its continued within service, proof by of the statute, can be established con operations tinued in interstate commerce. soWe legis conclude because of what we think is the clear expressed by lative intent the statute6 itself. We quote therefrom: by “No common motor carrier authorized this act operate any shall abandon or discontinue established, provisions (Em- under the this act.” phasis supplied.)
The establishment of service in interstate com- dependent upon grant merce is of a certificate necessity convenience and the inter- congress state commerce commission which authority. delegated that No such service could possibly provisions be established under “the of this act.” query appellant then did abides Yellow dis- any provi-
continue service established under the sions of act? this
Appellees contend in the alternative the com- specific finding made mission no of fact in this CL 476.13 (Stat Ann 22.546). 1966] Truck Lines v. P. S. C. Dissenting Opinion by O’Hara, respect; having- if but that order be construed finding, unsupported by any made such a it is evi- position adopted inwas, effect, dence. This trial court. sympathetic While we be to the rationale urged appellees “any interrup substantial tion in one pansion carrier’s service tends to result ex continuing
of other facilities to meet the shippers, overcrowding needs thus to cause *14 Cartage suspended (Gregg if the service is resumed” Storage & States, Co. v. United 316 83 US 74, 1283]) argument [62 L Ct 86 find the S ed we inapposite. In the cited the United case, States Supreme construing Court was a Federal statute far broader in than that with which we are terms only here concerned. Our commission exercises powers expressly delegated by those the statute. (See Kirkby Commission, v. Public Service 320 Mich 608.) Michigan public The commission has service grant authority no broad of a to establish “State transportation policy,” com as has the interstate transpor merce “national commission to establish a policy.” efficacy tation The wisdom lim or of such itation is not for our determination. What the car manifestly may rier here did not “cricket.” The be authority transfer its in a result diversion enjoyed by appellees pur of traffic heretofore to its Transport. chaser In fact, Central the commission, recognized precise argument: in order, this possible “While it is that curtailment of service by or diminution of service followed reactivation competition on could have an adverse effect com- petitive carriers, we cannot but find this to be lesser of the two evils.”
The function of the commission is not to assess consequence the relative evils of its decision. It provision find mandatory whether or anot Mich 377
276 Dissenting by O’íIakA, George Alger F. Com lias been violated. of statute pany Commission, Public Service Mich 104. v. Alger requires context Reference to the Case this distinguish bar, or it from case at overrule us it. Alger be re-examined We believe should because regrettable aof but understandable confusion be- and opinion minority majority public a tween on service and included thereof based opinion. majority trans- This position wording carried into the over circuit ultimately misapplication for court and made found facts to statute this Court. majority opinion
The com- service upon mission based Rule of the motor was carrier regularly adopted rules the commission and in majority opinion full force effect at the time the and order included therein handed down. provides: rule opera-
“9. Revocation failure to commence tions. “Any permit certificate to shall be revocable if begin permitted the carrier fails with- days from the date authorized the commis- *15 good carrier sion unless said cause shall show and sufficient why the service has not initiated, been hearing, proof revoked, be the after on of violation of regulations the statutes or rules com- this adopted mission and issued thereunder.” 1954 AC, (Emphasis supplied.) R 460.103. majority That the commission bottomed hold- its ing incontrovertibly by on this rule is established the excerpt following majority opinion: from the “This rule is headed ‘revocation for failure to operations’ commence and is intended to cover the begin situation of carrier who fails to service with- period the in Thirty stated after such service is authorized. provided days instituting are service, v. P. S. C. 277 J, O’Hara, Dissenting shown, than rather good cause the harsher except for applicable is to an estab- days period applicable believe that this rule is We carrier. lished because Beaver and to the instant facts Wells had (Em- 29,1951.” to June prior no established phasis supplied.) court, in statement said: issue, The trial its plaintiff, that the cer- of the claims “One granted 29, 1951, Beaver & on June tificate Wells failure of the null void because of the became transferee, Wells, Beaver & operation to start under after was is- same within days said certificate supplied.) (Emphasis sued.” parenthesis cita then includes this
The court Michigan motor carrier 13, 2, art act tion “Section 22.546)”7: (Stat §Ann No service. No com- abandonment “Sec. operate carrier authorized this act to motor mon a-nyservice established or discontinue shall abandon provisions act without an order of of this under the commission. ice is discontinued Any under which certificate serv- days than 10 without the the for more authorizing
previous order of commission this any to be revoked without same action be deemed shall upon part of the commission.” apparent statute not the that the above was It is majority provision based on which recognized judge opinion. but The circuit this its Cartage Co., A. L. Kauffman held that because operations conducting at the time transferor, was inappli- & Buie 9 was Wells, to Beaver the transfer In this, the learned the statute controlled. cable judge followed his Court in error this trial was misapplication statute.
Clearly, transferred to when the certificate commission, au- approval; Wells, & Beaver CL 476.13. *16 Dissenting Opinion by O’Hara, a indicated, thorized new service. the court True, as had been operation previously performed transferor However, Wells, Kauffman. Beaver & to the prior transfer, could not have that performed operation, certainly as them it a was new operation. operation It was a new as the con- which had not not signor and could have via shipped & prior Beaver Wells the transfer.
To “operate” within the meaning statute consignor, there must of be a necessity consignee, a a carrier. If a which carrier, prior to acquisition rights, can thereafter a consignor serve con- a it signee could not previously served; have if a carrier can transport a it commodity pre- could not viously have can carried, or serve an or des- origin tination point it could not have previously served, a new then is service authorized within the meaning of the previously quoted statute. Alger
Thus a new service initiated. found majority express so in these terms “Beaver & had no Wells established service prior 1951.” to June It is self-evident that the new not be could discontinued or abandoned be- it fore was initiated. The statute relied upon by the trial not court could be There lan- applied. guage Alger interprets correctly the involved statute in a factual situation it can be applied. Alger, properly however, did not present such facts. For reasons, the foregoing therefore, Alger now we find while awas correct statement of it was law, misapplication of that law to the facts in that case. To avoid to its confusion as citable value, we regard to overrule it. necessary to the
Returning case at bar, we here hold that in the following language commission order “we find Yellow Transit Freight Lines, Inc., not has abandoned or discontinued service contrary to provisions the motor carrier act,” constitutes *17 P. S. C. 1966] v. O’Hara, by J. Dissenting finding the was not vio- specific fact that statute lated. question only the of whether then remains There complainants before the appellees commission here, plaintiffs “clear below, court showed and and was satisfactory commission order that the evidence” or unlawful.”8 We construe
“unreasonable “Unlawful”, within the as words follows: these meaning means erro act, the motor carrier application prop interpretation or of law to neous permissible erly inferences or facts, established art is word of in our “Unreasonable” from facts. arbitrary, capricious, jurisprudence totally unsupported and means and evi admissible admitted dence.
Having case that determined this heretofore lawof under not commit an error the commissiondid inquire order, whether our construction of its we evidence in the admissible admitted there support to its record made before commission finding statutory specific fact of nondiscontinu- ance. there are constrained to find that was. It
We representing all cool able be comfort to counsel judge appellees that had the learned circuit note place making the initial determination in the been be commission, stead of the there would found plethora evidence, in the record exhibit-wise support testimonially, conclusions. How- his permitted he ever, neither nor we are this function. (albeit required operat- whether The carrier do so only ing commerce) did continue dur- interstate period mileage reports. ing file the involved equipment required by act. It did certificate proper had in force effect tariffs determi- It charges, noted, of intrastate and there was as nation Reporter. See CDS 479.20 (Stat Aim 1963 Cum Supp §22.585).— 2fi() 377 Mich O’Haba, Dissenting Opinion by supra, evidence admissible and admitted from which permissibly specifical- could infer or ly find that intrastate service was maintained. We specifically following testimony: refer to the (.Kenneth Midgley) E. your knowledge “Q. [Yel- To the best of has its operations during
low’s] pe- been continued all complaint? riod of time covered right.” “A. That is testimony, standing *18 might This alone, well be char- conclusionary opinionary. acterized as There testimony specifically follows, however, that Yellow Michigan apply directed mission counsel to to the com- * * * “for alternate routes to so as permit the out of the Marshall terminal in- of—I stead believe it was the Jackson terminal.” closing This is gan reference followed to more Michi- serving points terminals and from Marshall. Again Midgley the witness testified: disposed “Q. You of that terminal and to of elected duplicated serve out Marshall because it some these Yellow Transit terminals? right. opinion “A. That is That is the of the they application board, authorized alternate route.” speaks testimony eloquently support
This judge’s designedly trial conclusion that Yellow was deliberately discouraging intrastate It traffic. may very well have been reason that stated periods no intrastate movements were made. We prepared, are not however, to construe statute judge to mean that the trial was able make an original consequent inference of fact and a conclu- quoted law sion of heretofore that the action of the “equivalent outright carrier was refusal”. statutorily The commission, in the exercise of its delegated powers, empowered certainly to make Truck; P. S. C. v. Dissenting Opinion by O’Hara, J. such inference of fact. It, however, reached the opposite conclusion:
“It apparent is also because of its financial con- dition that Yellow Transit Freight Lines, Inc., found it necessary to relatively curtail in- drastically * * * trastate service. This curtailment of service was achieved by of certain closing terminals generally certain traffic.” avoiding types of
It was a permissible inference of fact for the find that the act of for an applying negatived alternate route any design discontinue or abandon intrastate service. not This is to dilute our prior interpretation of the statute as correctly quoted trial by the from judge Alger9 that: “The words ‘abandon or discontinue’ are not treated by our Supreme Court as being synon- ymous.”
We reassert that an outright discontinuance of service for more than 10 days, irrespective of intent without previous order of the commission, is viola- tive of the statute. We restate for emphasis that the same factual situation presented in this case could have supported commission finding *19 service was for discontinued the statutory period. The point is that the inference of fact from the testimony was the initial prerogative of the com- mission. It that was body took the testimony, the witnesses, observed the judge of their The fact credibility. shipments no in intra- state commerce were made for in excess of 10 days, alone, does not standing support conclusive proof of discontinuance of service. Even the fact that a carrier a discourages certain of traffic type none for ships 10-day period, does not alone constitute proof conclusive of discontinuance of See our prior analysis Alger herein. 377 Mich tMár. Dissenting Opinion by O’Hara, J.
service under the statute. Discontinuance' question No is a of fact. discontinuance was found by the commission. orwe, the trial would have arrived court,
Whether from at the same facts is conclusion these not might before have reached the us. We well same Judge the record, conclusion as did Under Salmon. did not show “clear and appellees it, we read satisfactory” of the evidence that order commis- sion was unreasonable. reversing
The of the court order circuit order of the commission vacated. The case should be the circuit remanded to court with directions enter affirming its order No the commission. being costs, the construction of statute involved. J., concurred with O’Hara, J. Kelly, J., concurred in the result. Black, (for reversal and remand redeter- Souris, mination). appeal judgment This is an from a Ingham county reversing circuit court an order service commission in which the com- Freight mission concluded that Yellow Transit Lines, had not Inc., abandoned or discontinued serv- ice as a common motor meaning carrier within the section article 2 the motor carrier act. (Stat 22.546). CL 1948, 476.13 Ann proceedings before the commission were complaint eight on instituted riers, common motor car- competitors of Yellow It Transit. was their claim Yellow Transit had discontinued, for days prior more than 10 ap- without proval, the service its certificate from the commis- perform sion authorized it to in intrastate commerce and that, therefore, such certificate had become automatically operation revoked- of the above *20 v. P. C.S. Truck Lines by Sorkis, statutory provision. provision That reads as cited follows: abandonment No “Sec. No service. com- operate motor carrier authorized this act
mon any or discontinue abandon service established shall provisions act an of this without under Any under of the commission. service is discontinued certificate days for more than 10 with- previous same order of this commission authoriz- out ing the shall be deemed to be revoked without any upon part action of the commission.” hearing, a After testimonial full the commission rendered decision. It full: follows complaint “This matter arises aas result of a application May days filed on 1961. Several hearings were held briefs have been filed. complaint alleges, “The in effect, that Yellow Freight Transit abandoned Lines, Inc., has discontinued or period days in excess of 10 prior without order of the authorizing such discontinuance or abandonment, and that, in effect, action of law. therefore, certificate has been revoked Freight purchased “Yellow Transit Lines, Inc., regular the intrastate route common motor carrier authority Michigan Freight Motor Lines in August authority purchased quite 1957. was many metropoli- extensive and covered main including tan areas of the State but not limited to Lansing, Detroit, Jackson, Port Huron, and Monroe. apparent “It is that from the time of commence- operations ment of under the certificate, Yellow Freight Transit operate Lines, Inc., did not extensively predecessor prior years as had its predecessor when that competitive active part transportation system of within the State Michigan. apparent It is also because of its Freight financial condition that Yellow Transit Lines, necessary relatively Inc., found it drasti- *21 259. J. Souris, by Opinion performed it which cally intrastate curtail necessarily on concentrate and to this State within operations. longer relatively haul interstate Obviously, not circumstances were course, these pleased particularly but was carrier which the with its future time. required at that a curtailment such closing certain by achieved of service curtailment This avoiding generally and terminals of certain and types the curtailment The extent traffic. areas. varied between different also diminution though however, drastic convinced, are not “We may of the carrier was been, that the action have dealing are abandonment. We in as result such experienced knowledgeable carrier in a here with responsibilities fully transportation and aware of equally fully aware as a common carrier any actions. Abandonment results of ill-conceived only be found aas result discontinuance should or of a more There abandon before we should positive here indicated. action than is clearly intent must established be find that such abandon- say with re-
ment effected. To otherwise has been commodity spect operations any general regular route with the unlimited factors carrier, operations affect its over which it every authority put possibly control, has no would jeopardy. every such carrier continual We any placed feel common be do not carrier should any position. possible such While it is that cur- tailment of service or diminution of service followed competition reactivation could have an adverse competitive carriers, effect on we cannot but find this to be the lesser of the two evils.
“Accordingly, Freight we find that Transit Yellow Lines, Inc., has not abandoned discontinued serv- provisions contrary ice to the of the motor carrier act.” copy of the commission’s decision was served May complaining Ap-
on on carriers parently on the same date Yellow Transit filed with P. S. C. v. Souris, application transfer its cer the tified Transport, dispute authority to Central involved in this law,1 the time allowed
Inc. Within appealed complaining carriers and three others the the by filing above-quoted of the commission decision Ingham complaint court circuit a bill against By appropriate motions the commission. Transport orders, Yellow Transit Central proceedings defendants in the circuit intervened rivals, Jones Yellow Transit’s still another of and Transfer plaintiff. Company, After intervened as *22 stipulation parties, joined the and issue was proceedings of the before the commission the record judge the to the circuit basis was submitted pleadings. the framed decision of issues his failing in that the commission erred decision was His to had been Yellow certificate hold that Transit’s by operation 2 13, article law, section revoked it to invalid. decreed be therefore, and act, he, Judge reaching Salmon, the circuit his In decision judge, confused words that the noted commission by requiring and “discontinuance” “abandonment” predi- aas of intent discontinue service to evidence finding act, under the such discontinuance cate to Alger Company George v. Court, this in F. whereas (1954), 339 Mich 104, Commission Public Service pertinent be while intent had held that 112, permanently that been service has determination determining whether in abandoned, it is irrelevant days. than 10 for more service has been discontinued finding Judge noted the commission’s also Salmon curtailed its intrastate had Yellow Transit that by closing drastically terminals of its certain service types generally avoiding of traffic. He certain support ample such in the record evidence found finding, for a two-month including that evidence CLS 1961, § 479.20 (Stat Ann 1963 Cum Supp § 22.585). Mich by Souris, July,
period, no, 1961,Yellow June and Transit made shipments any whatever intrastate from terminal in Michigan. He reasoned to his conclusion thus: determining question “In of whether com- finding mission’s of curtailment and diminution of reality outright in amounted a total kept discontinuance it should be in mind that one of requirements the the act of a common carrier in as defined (Stat [CLS Supp 475.1 Ann 1963Cum 22.531)] public to hold itself out to is to trans- port says that intrastate and further the act in effect that business of such carriers declared to be regulated affected with interest and is adequate transportation insure motor and further that the commission and not the carrier is to do the regulating. kept It should also be in mind statutes this kind should be construed shipping public interest of the and not the carrier. dealing [*] “The [*] [*] with a knowledgeable carrier says experienced we are here transportation responsibilities fully aware of its fully equally aas common carrier and aware of the any Knowledgeable results of ill-conceived actions. experienced though granting it is and that it preserve authority operating would wish to valuable *23 strategy think nonetheless we its into a culminated total discontinuance and contravened thus the stat- appears things ute. This carrier done all to have necessary responsibilities to meet its as a common except transport property carrier to intrastate and accomplished by avoiding is this same to concentrate profitable long on the more hauls.
“This case cannot be likened to a common carrier simply by transport goods who sits does not because are tendered to it. none Here the carrier designedly intentionally avoided intrastate point traffic and to a carried this on where two for transported any full months it none from terminal. Lines v. P. C. S. Associated by Souris, unbefitting it seems circumstances “Under such attempt justify to carrier for the and immaterial arguing by position not that service was refused its deliberately Obviously shipper. any avoiding if a carrier eventually the time traffic arrives intrastate movements. tendered such not be when it will happened logical what in this that this is inference is equivalent opinion in our conduct case. Its an outright refusal. passing legislature “Apparently the so- considered it to be discontinuance statute called transporta- well-regulated extremely important to a approval system from the to secure tion for carrier any of its estab- for discontinuance of commission provided that if the it in effect For lished service. operating it would lose its carrier authority. not do so did carriers force- effect to some This severe by importance placed upon emphasizes fully the it the However the consequence legislature. of the for not or valid reason is not a material statute applying bring under the carrier it if the facts provisions.” argues, appeal Transit Court, Yellow to this On opinion controlling strength in J. E. on the Cartage Company Bejin Commis- v. Public Service (1958), decision, a 4-to-3 352 Mich sion Judge usurped commis- function
Salmon substituting judgment by facts his sion Bejin, In certain the commission. found the facts sought plaintiffs here, carriers, like motor common a commission in the circuit court to review Delivery, authorizing Inc., Detroit the transfer Delivery System, certain of Inc., of P. Peter Detroit Ellis authority Delivery’s claimed certified consequence plaintiffs forfeited as a been to have Bejin, prior unlike this In transfer. section made had Truck, case of findings in the commis- explicit forth of fact set opinion majority of which on the basis sion’s *24 Mich Opinion by Souias, Delivery’s authority that Detroit certified concluded had not forfeited and, therefore, been could and transferred Ellis. As viewed this should be opinion signed controlling who Court’s Justices jin, (p 154) in Be the circuit court “exceeded its authority undertaking finding a to make new including finding or facts, different a different on the ultimate fact of whether not there was was any such abandonment or discontinuance of service”. disagrees proposi general
noWhile one with the jin, fully general tion, stated more in Be aas findings supported by rule administrative evidence are of fact if upon reviewing ap a court, conclusive plication give general proposition of this continues to difficulty. I not However,
us do consider necessary appeal again review to decision of this Employment (see Wickey Security v. Commission 489-499) all [1963], 369 Mich factors 487, scope proper judicial review establish findings. Appellate of such decision administrative depends, upon my duty here a view, review ing court to reverse administrative board’s deci upon sion conclusion that the decision based upon misconception controlling law. jin, controlling opinion issue in Be sole as the specifically, it,
viewed
was one of fact and
right
reviewing
findings
court’s
to make
of fact
contrary
to those made
the commission. There
opinion,
is no indication
there
is in the
dissent, see
commission by decision reversed the circuit commission in the clearly appears judge, written from the decision it that Yellow Transit found that drastically commission closing- by service curtailed its intrastate generally avoiding certain certain terminals types curtailment is traffic. The extent of such explicitly than the commission other found not Unfortunately, although the that it was drastic. the commis- rivals before claim of Yellow Transit’s expressly limited to one of discontinuance sion was proceeded commission in service, its decision as one in which it was claimed discuss the case meaning “abandoned” within the the service was proof Finding Yellow 13. an absence that section Transit intended service, its abandon intrastate had been no such aban- it then concluded there discussion, that without further there donment and, within the had been no discontinuance meaning 13, either. of section Judge fairly characterized believe Salmon
I thusly: action commission’s deciding this case seems in “The commission and ‘discontinu- the words ‘abandonment’ used have considering synonymously its ance’ intent entirety appears was if the matter applied to both theories. Souris, had not so intended the court
“If the clearly negatived have the matter of feels it would to a discontinuance.” intent as of the commission’s decision cursory reading Even a entirety, forepart its in the of this quoted opinion, determined, the commission notion dispels any intent there no first, that, abandon, absent meaning abandonment within the section 13 from and, second, that, wholly aside Yellow Transit drastically intent, Transit’s Yellow actions not intrastate service did constitute curtailing its within days thereof more than 10 discontinuance *26 the 13. Salmon read meaning Judge the of section two statutory as which confused the decision one be accom- of which abandonment, concepts the requisite instanter there be provided plished supra, discontinuance, of 112), and (Alger, p intent for is occurs whenever service discontinued approval 10 of the days prior without the more than not the carrier intends and whether or was in What said authority. forfeit its certified to validity which there to the of 112, at as Alger, p repeating: challenge, no bears is current the runs thought defendants’ brief “Throughout forfeiture under the be no statute there could that steps looking took to and as intended they long so Ac- time the future. some rendering service to read 10- to the that would serve theory ceptance of of out on discontinuance day limitation consequence, In must be altogether. statute the word of the dictionary definition the said ‘abandon’, quoted being ‘to relin- by defendants as again resuming intent of never or with quish up give relates to question the when right,’ pertinent one’s when, entirely is irrelevant abandonment, permanent whether service simply the here, is question for more than discontinued temporarily, days.” P. S. 29l Lines v. by Sornas, Judge quoted paragraph of Salmon’s Ill the first p properly opinion, judge supra, identifies 289, controversy. presented this That issué the issue power regulate the commission to the to the involves availability commodity carrier services delegated people to the commission of this State as legislature. legislative purpose mani- clearly fested in evident when that section is light legislature’s section is read in the of the decla- pas- ration that the of motor business carriers sengers property with a is affected regulation requiring interest and that one reason adequate such carriers is the insurance motor transportation 1, facilities. Section article 5 (Stat 22.566). act, CL sidered, 479.1 Ann con- So designed section 13 assure authority perform carrier which services, seeks actually performs them to the extent there is a demand therefor and that when such carrier deter- authority mines to abandon when such carrier in fact than discontinues such services more days prior approval without commission, applicants commission can authorize new carrier perform such services or other certified carriers can expand security their facilities relative economic public’s to fulfill the need for such services. It is way legislature sought people this assure *27 adequate transportation and to maintain services power regulate availability the to the of such serv- ices in the hands of the commission. permit voluntarily To a carrier to curtail its drastically so
services that no services are rendered periods days for in 10 excess of without enforcement legislative place mandate of section would in the hands of such carriers, rather than com- the power mission, the to determine to what extent the public’s transportation need for services will be met. permit voluntarily To suspend a carrier to service, Mich J. SOURIS, rights temporary operating in a place state Alger, in dormancy, said the Court be, as would 10-clay 112), on discon- (p limitation read the “to altogether.” the statute out of tinuance the commis- I above, believe I indicated have As statutory proper apply standard the failed to sion developed proceedings in the it found to the facts ample support this record in I find it. before While for explicit findings fact Judge more Salmon’s application the law to those that his believe equally eminently evident it is correct, facts to me having he did that concluded as that, applying law to the facts erred commission Judge have remanded Salmon should found, by it for redetermination to the cause opinion light rather in his the law stated in the independent proceed determination to an than the facts Judge Accordingly, I believe in the circuit court. judgment be reversed Salmon’s should remand for further the cause remanded the commission with directions to him proofs reopen if any party and to rede- commission so desires Upon light opinion. of this termine issues be redetermination, the commission should such directed explicit findings in such fact, to make majority form were made the commission’s jin, supra, judicial review, Be that in the event of so judged. properly can be commission’s action
T. M. C. J., Adams, J., concurred Kavanagh, J. Souris, with (concurring in reversal remand Smith, redetermination). Although agree I with Jus George Alger
tice the case of F. Com O’Hara pany (1954), v. Public Service Commission upon principle 104, was decided and, erroneous therefore, should be overruled for the reasons which *28 293 v. P. S. C. Smith, gives, nevertheless, the limited use to which lie Alger puts the Case is correct, also Justice Souris what constitutes a for the definition of “dis- is, “abandonment.” and what constitutes continuance” disposition in I am moved to concur However, although I have no doubt because, Justice Souris fully commission is aware that the terms, two the com between these distinction making this distinction. order is unclear mission agencies Opinions ought administrative and orders of clearly application the ex to reflect possess. undoubtedly pertise For bodies such drafting, problem of confused a somewhat similar Chrysler Corporation v. Losada, Mich 209. see did not sit. J., Dethmers, v. OAKLAND COUNTY CLERK. THORBURN Court. Decision of the Expiration — — Judges — Office Date Constitutional Term of 1. — Equally Law Divided Court. setting expiration Declaratory judgment date statute judges is affirmed was constitutional of office for circuit term 393). (PA 1965, No equally divided court Judgment—Extension Question—Declaratory Costs—Public 2. Judges. of Term Office Circuit judg- declaratory proceeding to obtain No costs are allowed statute, adopted after constitutionality second ment [11] [3-6] [2] [7, 8,10] 16 Am Jur [9] [1] 5 Am 5 Am 16 Am 30A 30A Am Jur Jur Am Jur Jur, Judges 2d, Appeal 2d, References Jur, 2d, Appeal Constitutional Judges 2d, Constitutional Error and and Error for Points §§ Law 18. § § 1009. 901. Law Headnotes § et seq, et seq.