*1 Michigan Reports. 360 578 aas not have this taken hard and fast would We in or de- Actually, jurisdiction, grant this rule. trial the sound discretion of nial of a new rests Lowenstein, People 309 Mich v. court, the trial without a clear disturb showing do not and we do not here Such abuse we discretion. such abuse find.
Affirmed. Ed- C. Carr, Kelly, Black, J.,
Dethmers, JJ., concurred. Kavanagh, Souris, wards, CORPORATION PUBLIC GREYHOUND COMMISSION. SERVICE Commission —Review of Service Questions Carriers —Public 1. Law. Pact or aggrieved by holding considering himself party A questions questions fact of law service commission carriers, may equity review bill respect have or, if county, party review Ingham seeks circuit court only, appeal questions law he take Supreme direct the commission nature of certiorari [18,19] [20] Y] ‘2, A, 6, '5] ‘16] '17] ‘8-11] ’12] '13] '14] 9Y5] What carriers are 3] 9 Am Am37 9 Am 9 Am 37 Am 7] 37 Am 14 Am 9 Am Am 9 Am motor Am 43 Am Jur, Jur, Jur, Jur, Jur, Am Jur, Jur, Jur, Jur, Jur, Jur, References vehicle. 161 ALR' 417. Carriers § Jur, Public Officers 471. Jur, Carriers Carriers Carriers Motor Motor Motor Costs 97. Carriers § Carriers § Publie Utilities and Services § Public within Transportation Transportation Transportation § § § 102. 287. 5. 4. Officers 273. statutory 56. § Points §§ definition of common carriers § § § 20. 3. Headnotes 496. et seq. 218. Corp. Sery. v. Pub. Comm. Court, (CLS being first obtained from leave latter 479.- (cid:127)§ 20). Ingham Service Commission — Circuit Same —Public Court Reí *2 view. Ingham county publie The the circuit court’s review of service holdings respect with necessarily commission’s to carriers im- plies that the matter reviewed was before the commission and jurisdiction (CLS 1956, within the thereof to determine 479.- n 20). Signature Same —Public Service Commission — on 3. Orders —Re- Ingham view —Jurisdiction of Circuit Court. Ingham county court’s on circuit determination review of order publie of as service commission to carriers that not was jurisdiction within that court’s to determine whether or not sign one right opinion had the commissioners to the reviewed, being and order of the commission because of al- leged held, State, removal the proper, from since the matter (CLS had put 1956) not been in issue before the commission 201.3, 479.20). §§ 4. Officers —De Facto Officer. in occupancy performing One aetual of an office and its duties apparent right subject of under claim do not to so is to have challenged notwithstanding may his vacancy exist, acts that a legal standpoint, appoint- filled ment of a successor. 5. Facto Same —DÉ Officer. A de law, in good point officer is one whose title is not facto but who is in possession fact the unobstructed of an in office discharging public is in its duties full in view of manner and present under such to circumstances as appearance being an usurper. intruder or 6. Same —De Facto Officer. question The open upon actions of a de officer are not to facto jurisdictional grounds, being there no difference between the jure acts of a de publie and a de officer far as so facto interests are concerned. Public Service 7. Commissions —De Facto Commissioner —Review Orders. publie Action of a signing member of the service commission an order subject commission was not attaek review Ingham court, commission’s orders circuit where he had been in possession of the officeand continued to function (CDS signed questioned had been until after
therein 479.20). 1956, § Common Carrier —Hear- Process —Restricted Carriers —Due ing. delivery hearing parcel peti- on process connection Due authority as restricted eommon carrier application tioner’s weight up specified and size between parcels transport peninsula over part of the lower points in the southern all held, denied, by reason of to have been irregular routes employee hearing was conducted fact an order of reference to commission service having records of the commis- employee been entered desiring sion, any party to offer no claim made where during hearing doing proofs precluded from so extended was ap- any misunderstanding part of there (PA hearing pellants conduct with reference to the amended). No — — — Restricted Statutes Public Service Commission 9. Same Argument. Copt Report Carrier — —Oral Common publie requirements procedure before the service basic *3 authority operate respect to a to as restricted commission were of the fact eommon carrier not violated reason that employee copy report of of the commission who no of held hearing given parties opposing grant the to the extended given argu- application opportunity for of and no oral such thereupon, provide ment not for submission where statute did 1933, 254, (PA argument copies of or for such oral No as such amended). Same —Public Service Commissions —Orders—Recitals—Re- 10. port Hearing. of publie granting authority petitioner Order of service commission operate points to a all as restricted eommon carrier between part peninsula in southern of the lower for the trans- weight parcels up specified mission of to a and size and over irregular not failure routes was invalid for to recite the trans- receipt by report employee mittal and who its had matter, hearing conducted extended where the controlling require statute does such and it not a recital does appear parties deprived not opposing petition were right 1933, 254, amended). (PA substantial No as 11. Same —Public Service Commission —Due Process. held, process peti- parties opposing Due not to have been denied authority tion operate for carrier as a restricted common Corp. Pub. Serv. Comm. weight points up specified between all parcels to a size peninsula irregular part of the lower over southern in the appear routes, it does not service com- where given proper due and consideration mission has it, proceeding questions involved before or that testimony in did not evaluate the members commission respective parties light the claims of the and make a 1933, (PA of each issue No determination as to merits 254, amended). as op Property. 12. Same —Common Motor Carriers contemplate party act does not who is The motor carrier property operate a eommon motor carrier of authorized to engage transportation by all should motor vehicle of personal property anyone desiring kinds of service without (CL 475.1, limitation or as amended PA restriction 232). No Same —Common Carriers —Limitations. holding need not unlimited in out eommon carrier eharaeter. 14. Same —Restricted Common Carrier. granting serving department applicant, previously certain Order places stores and other of business the Detroit area as a carrier, authority operate restricted eommon contract as a weight parcels up specified carrier for the transmission of points part and size between all the southern the lower peninsula irregular permitting over routes but not it to trans- port by department thereunder stores and commodities sold specialty shops to or from customers thereof or between shops stores and nonetheless branches warehouses applicant made the limitations a eommon carrier within the imposed (PA amended). No Property. 15. Same —Common Carrier oe A property eommon carrier of who himself out as is one holds ready goods engage transportation for hire as public employment, occupation within the as a casual required capacity sphere limits of his of the business *4 him, apply is so that he is all who and bound to serve refusal, reason, liable for without sufficient to do so. Daily Pickup Charge 16. Same —-Restricted Common Carrier — for Service. Weekly irrespec- charge, daily pickup parcels, $2 service of by party tive of authorized parcels, the number of such made 360' carrier, may not be common motor restricted as a to serve significance as objection of such to invali- interposed as an necessity, the publie and is- convenience certificate date a (PA justified by proofs No as of which suance amended). Necessity— Convenience and of Public 17. Same —Certificate Carrier —Restrictions. Common operate necessity to as a publie convenience and A certificate of irregular weight over specified and parcels up size carrier portion southern any points within the between routes ' (cid:127) com- transportation but not for the peninsula the lower specialty shops to or department stores and sold modities shops and or sueh stores and thereof between from customers permit operate not effect a as did and warehouses branches (PA 1933, No a common carrier rather than a contract amended). Souris, Edwards, JJ. Black, Kelly, Smith, Carr, Per Exemption from Bate Order —Dis- Carriers — 18. Same —Common crimination. previously operations sub- exemption of a common carrier’s applicable to other carriers con- ject minimum rate order upon hearing change in which a notice of substance stitutes parties unjust given in order to avoid dis- to affected be must (CL 1948, advantage 479.- crimination, preference, undue § 18). Exemption from Bate Order —Hear- Carriers — 19. Same —-Common ing. exempting com- publie restricted service commission Order order, having there mon from minimum rate carrier hearing respect thereto at been noticed or held (CL 1948, parties present, 479.- invalid affected could 18). Party of Either to Prevail Full. Costs —Failure appeal competing suit are carriers’ No eosts allowed granting intervening publie review order of service commission necessity publie as a defendant a certificate of convenience and exempting subsequent restricted carrier and order common resulting of first from minimum rate order affirmance order, fully party later has reversal of since neither prevailed (PA 1933, amended). No Per' Smith, Black, Edwards, Souris, JJ. JJ., dissenting.
Carr Kelly, *5 I960]' Greyhound Corp. Serv; v. Pub. Comm. Ingham; (Marvin
Appeal J.),' from Salmon J. April (Docket 5, Submitted No. 3, Calendar 47,809.) July No. Decided 11, 1960. Corporation,
Bill a Delaware Way corporation, corpo- Lines, Short Inc., Ohio ration, 11 other common motor carriers, all Michi- corporations, gan Michigan Motor Bus Associ- corporation, Michigan against Michigan ation, a grant Public Service Commission review the aof public necessity certificate convenience and Michigan United Parcel Detroit, Inc., Service of corporation, party which intervened as a defendant, exempting and to vacate action in commission’s previously United Parcel from entered minimum Railway Express Agency, rate order. a Dela- Inc., corporation, joined intervening party plain- ware upholding tiff. Decree for defendants orders com- appeal. grant mission. Plaintiffs Affirmed as to exemption miuimum certificate, reversed as to from rate order, and remanded. Brady (Edmund Brady,
Matheson, Dixon & M. counsel) Bieneman, Walter M. Veale, and John M. (Archie Fraser, Trebilcoek, Davis & Foster C. counsel), plaintiffs. Fraser, of for Attorney Adams, Paul L. General, Samuel J. Tori- Derengoski na, General, Solicitor Robert A. Tormey, Attorney E.
John Assistants General, for defendant Public Service Commission. Long, Kennedy (Irving Butsel, Eaman, Oust S R.
Segal counsel), Saxton, and William M. for inter- vening defendant United Parcel Service. Detroit* Ine. Michigan part, dissenting part). (concurring in
Carr, J. proceeding At fore time the institution be- commission, service resulted, this case has some time *6 prior thereto, Detroit, the United Parcel Service department serving certain stores and Inc., was places in the Detroit area as other of business August 11, 1955, Under dáte of contract carrier. seeking application commission an with said filed authority a restricted common carrier to trans- as pounds parcels packages exceeding port and length girth weight, and com- inches part points in all the southern bined, between irregular peninsula of over the lower pro- Plaintiff-appellants intervened the routes. ceeding application. opposition A hear- to the July beginning ing 1956, and terminat- 16, was had following. proofs ing were 8th on November employee King, L. an of the taken before William the commission a who submitted commission, report “Suggested Commission Action”. entitled opinion August 6, and order 1957, date of Under signed by E. Hunt Maurice Commissioners plain- filed, was on Lee served H. was James days tiffs later. appears under the date of
It that commission, rate April a minimum had issued 10, 1950, transportation by covering car- common certificated pub- duly by order was truck, which motor riers appears from the record before further lished. had ex- the commission from time to time us empted and United order, from such certain carriers petitioned August 6, 1957, after Service, Parcel Plaintiff-appellants re- its behalf. action in such quested hearing petition, on the a formal be held granted. request Thereafter was but granted opposing relief parties referred order of Service United Parcel Corp. Pub. Serv. Comm. appealed therefrom to circuit court of county pursuant Ingham provisions to the complaint ap bill of statute, and amended also exempting pealed order * from the United Parcel the minimum rate order 1950. Service plaintiff Railway Express Agency, Intervening request plaintiff party was at its added Inc., and adopted complaint, with in its bill certain pleading exceptions, filed averments plaintiffs. other Parcel Service also in- the tervened as party were filed defendant. Answers plaintiffs’ pleadings and the matter brought hearing in circuit court on on for November subsequently Proofs were taken, 1957. pleadings purpose filed for the amended amplifying were finally The case was issues involved. April submitted hearing in court it was the claim circuit
On plaintiffs appellants original *7 signed by Hunt and was Commissioners Lee order invalid alleged, time it at the Commis-
because, was changed from Michi- residence had his sioner Hunt gan doing his that in so he vacated California, to disqualified participating from in officeand was removal. Tes- action after such claimed commission timony reference to and received with was offered proofs the coun- At conclusion situation. the testimony stipulated in taken circuit the sel to commission not be returned the court need thereby, was submitted and the matter consideration argument accordingly cir- oral and briefs. The on up- April opinion judge 24, his on filed cuit issuing holding the in action the commission the appeals taken and dis- which the were orders appeal complaint. missing The to this the hill has resulted. Court
* 1957.—Reporter. August Dated judge concluded that he
The circuit was without jurisdiction whether to determine Commissioner to act as a member of the com- Hunt was authorized issuing Lee, Commissioner the mission, order of partici- Mr. Hunt did not subsequent appeal pate which order from in the exempting taken, United Parcel Service has been operation the minimum rate order of from the Appellants claim that the 1950, above mentioned. declining pass judge to on matter was in error in the nullity failing to hold that the order was a disqualification. of Commissioner Hunt’s because pertaining to review of an order Provisions commission the circuit court service county Ingham under the motor carrier act* are (Stat Ann 479.20 1959 Cum found CLS §22.585). provides Supp if section evi Said offered and received on such review dence is upon from that offered found “to be different is hearing or additional there commission, before copy of such evidence to” court shall submit stay further action for the commission and to parties days, period action unless the contrary. receipt Upon stipulate required the commission additional evidence give modify, alter, amend, it consideration appeal the action to the been from which has rescind or taken, reporting court within a its days. language of period the statute of 10 proofs clearly implies circuit taken appeal the mat have reference to shall court proceeding before the commis ters involved commission, that were before If issues sion. pass, empowered could and on *8 appeal, it injected is obvious case on into such a he ed [-Stat amended]). [*] PA Ann No and Stat as amended Ann 1959 Cum (CL Supp § 475.1 22.531 et seq., et as seq.,. amend- as Greyhound Corp. Sery. Pub. Comm. v. might materially nature of action altered the circuit court and decree entered there on the of determination matters on which based the commission we pass.- could Such, not and
did legislature. intention of the think, appeal statutory are here We concerned original than with the exercise the inherent rather of equity. jurisdiction of a court of Transporters National Ass’n In Automobile v. Ingham Judge, Mich 394,399, Circuit was said through speaking- Mr. Court, Justice North, by procedure following a of under the discussion statute: statutory provi- present “It follows that under party conceiving aggrieved himself sions
holding Michigan public commission utilities questions questions of of have law, fact or on review bill equity Ingham in the circuit court of party questions county; if review of or seeks only, may (leave being obtained) take he first law appeal from in the nature of certiorari direct Supreme to the Court.” commission language above that this noted from the It will be appeal proceeding on has construed Court county Ingham a review circuit court of questions holdings fact on the commission necessarily implies questions law. This the commission and was before reviewed the matter within jurisdiction See, determine. thereof to Company Telephone General also, (8 Commission, 341 Mich Service Public 97). PUR3d support the circuit court of the claim
In appeal county, statutory an order Ingham empowered commission, was service right question of one determine making of participate in the commissioners *9 Michigan Reposts. 360 588 appeal taken, was attention order from which from other States, to certain decisions is directed Thompson Paper Company including v. & Moore Corporation, Hydro-Electric 111 Bellows Falls Vt (13 190). statute, under a A2d That case arose Michigan legislature, analogous act of the providing a that member of substance heard all of the State who had commission service part of a case had retired from or officebefore a member substantial completed remain should the case was concluding purpose of and decid- for judg- findings, signing ing orders, such case, appeared that 2 members ments therein. It final order commission had retired before a Vermont in a to the case had entered. Pursuant rate been notwithstanding that their successors statute, and appointed, an entered which had been order was question disposed No the matter. was terms raised as validity clear- of such order. was Subsequently, ly with the statute. in accordance commission, so- the members of old however, supplemental order. to enter called, undertook proceeding having definite- been It was held ly disposed further of, statue did not authorize assumption authority by former members question at in the case was The issue commission. interpretation as the of the statute. Insofar the present controversy this is concerned
before Court point. not in it is Hurley Board have v. Missis also cited Counsel (23 580);
sippi Commissioners, 76 Miss So Levee Eq 216; and Jones, Garmire v. Johnston v. NJ App Mining Co., first 2 of American 93 Ill 331. The equity injunctive relief, cases said were suits general powers the exercise of such involved equity. ac Garmire Case of a court of tion of quo right try directors of warranto private corporation positions. These hold such Corp. Pub. Comm. Serv. in determining ques- no assistance furnish cases to which the answer by appellants, raised tion here interpretation pertinent on the depends primarily of this State. the statute provisions of the circuit the conclusion are in accord We review statutory his jurisdiction judge *10 public and of the service findings the of holdings to sought the be not extend to issue commission did Hunt to sign right of Commissioner raised as to the commission. Assum- and order of the opinion be given may that such issue however, properly ing, not be avoided may the conclusion consideration, de at least a Hunt was that Commissioner facto take busi- part entitled to as such officer, and act continued to of commission so he long ness of his that and appointment capacity pending successor. was member of the commis- appointed
Mr. Hunt for a ex- sion the State term governor of It is claimed that May pre- piring July California, decided to remove ceding he had to household to taken to that goods he caused his be that' the latter of said certain part month, State he to on indicated that intended part depart acts his of Michigan. However, appears from the State the time portion prior that he was Lansing 1957, on which successor was day his he during period appointed, par- ticipated in the service proceedings public his so commission, right ques- do that so far as the record is concerned tioned, and other the com- he was members regarded mission, as entitled generally, duties of his office. has been repeat- perform one that under circumstances edly comparable held actual an office its occupancy performing so claim of do apparent duties under right challenged notwithstanding his acts subject to have may legal vacancy standpoint, exist, that a from by appointment. filled rely provisions Appellants on the CLS (Stat 6.693), § 201.3 Ann 1956 Rev which reads as follows: “Every hap- office vacant, shall become any following
pening of
events, before the
expiration of the term
office:
of such
incumbent;
“1. The death of the
“2. His
“3.
resignation;
office;
His removal
ceasing to
“4. His
be an inhabitant of
State;
this
county,
local,
if the
or,
ship,
district,
officebe
town-
city,
village,
for which he shall have been
appointed, or
which the duties
within
of his office
required
discharged;
are
to be
“5. His
crime,
conviction
or of
a violation of his oath of
infamous
any
office;
involving
offense
competent
“6.
The decision
tribunal, declar-
ing
appointment,
void his
or,
neglect
“7. His refusal or
to take his oath of office,
*11
give,
deposit
or to
such
or renew
official
or to
bond,
oath,
or
in
bond,
the manner and within the time
prescribed by law.”
Emphasis
placed
provision
is
on the
of subdivi-
quoted
declaring
sion 4 of the
section
that an office
becomes vacant if the incumbent ceases to be an
State,
inhabitant of
or,
the
in the case of local office,
political
municipality
subdivision or
within
performed.
which his duties must be
is also
in
declared
subdivision 7 that failure to take the
give
oath of officeor to
or
renew officialbond or
comply
requirements
with similar
like
has
effect.
People
in
However,
v. Matthews,
fice; his right fair color or title to the office, has at least a length of time, or has and as an officerfor acted reputation acqui- such circumstances of or under public as to authorities, escence presumption appointment election, afford and induce the people, relying inquiry, supposition that he is the officer he assumes in action; and, some, to submit to or invoke his be, although jurisdictions, only the office all, when ” jure a de existence.’ has pp 225, 226, Jur, In 43 Am Public Officers, general holding the matter is reference to as follows: summarized Ellenborough de has an officer “Lord defined facto reputation being officer has the
as one who
he assumes
yet
good
in
officer
is not a
be,
quoted
point
with
has been
and this definition
law,
approved
many
approval cases. Another
title
one whose
that a de
officeris
definition is
facto
point
good
is in fact
but
law,
who
is
discharg-
possession
of an
office
unobstructed
public in such
full
ing
manner and
view
duties
its
*12
pre-
not to
under such circumstances
usurper.
appearance
being
intruder 6r
sent
comprehensive
follows:
definition
A still more
person
A
is a de
officerwhere the duties of the
facto
(1)
appointment
officeare exercised
without a known
reputa-
or election, but under such
circumstances
acquiescence
tion or
as were
calculated
induce
people,
inquiry,
to submit to or invoke his
supposing
action,
him to
be
officer he assumed
(2)
be;
appoint-
under color of a known and valid
ment or election, but
the officer
where
had failed to
precedent, requirement,
conform to some
or condi-
give
tion, as to take an oath,
a
or
bond,
the like;
(3)
appointment,
under color of known
election or
eligible,
void
there was want of
pointing body,
the officer
because
was not
or because
power
electing
ap-
or
irreg-
or
reason of some defect or
ularity
power,
ineligibility,
in its exercise, such
want of
being
public; (4)
or defect
unknown to the
appointment by
color
under
of an election or an
pursuant
public,
to a
unconstitutional law, before the
adjudged to
same is
be such. And this has been
widely accepted.
Numerous other definitions
judicial opinions.”
found in
import
p
seq.
Of like
is 67 CJS, Officers, 135, 438 el
Attorney
Dingeman,
Lacy,
General,
In
rel.
ex
v.
Because 702), (77 App Collins, Div 87 is of In re NYS validity of the incor- was the Involved interest. village. given poration clerk had The town who the election had notice removed with his family county engaged to another and had in busi- there. ness was conceded that he had in fact be- legal come resident the town which he had perform removed. However, so he continued to all the town the duties the office town clerk family. he had removed himself and No period person during other was chosen *14 to suc- perform him, and ceed he continued his duties and pay. draw his was claimed that because of the change of residence the office vacant, became and given therefore that the notice the election was person an unauthorized and was void. The court jure recognized he not that a was de incumbent of office,but held that because he had continued possession existing appearance under an thereof in public right, regarded generally that as the him town clerk, he had acted as such question, a de he was officerand, hence, facto point given notice him was valid. In also is Rockingham County Bridge (CCA 4), v. Luten Co. (66 735). ALR F2d suggested,
As we not before are here concerned might appointed with a whether successor have been theory to the office of commissioner on a vacancy question existed, with nor whether a quo might proceeding properly a in warranto court have concluded officehad been vacated or abandoned. taken and of such nature not Actions were under- up including
Mr. Hunt continued to and day perform August, the 6th the duties right ques- being officewithout his so his to do prior from tioned source. Under decisions of general recognized this rule Court under jurisdictions in he officer other was de facto signing action order 6, 1957,. his from which
plaintiffs appealed
circuit court,,
subject
proceeding.'
is not
to attack
this
Counsel
Corp.
v. Pub.
Serv. Comm.
People,
appellants
Attorney
have cited
ex rel.
Village Highland
General,
Park,
proceeding. Appellants further contend that the service procedural commission failed to observe rules hearing, connection that in effect there process was denial the due of law. As stated, before proofs King, were taken before L. William an employee of the commission. It not is claimed grant authority the statute did full with refer- taking testimony ence to the in such manner, it is said that but should have been entered expressly in the records of the commission declar- Apparently ing King. to Mr. reference such an any claim order was entered. No made that party proofs desiring precluded to offer doing so because of failure to enter formal any misunderstanding order, or that there was *15 part any plaintiff-appellants of with ref- hearing. conducting erence appears parties opposing It that further granting by sought of the relief Parcel requested copies they Service that be furnished with King’s report, they given oppor- Mr. an be objections tunity thereto, file and that oral argument requests should be allowed. Such were granted. not pointed behalf On of the commission is proce- indicating
out that the statute require to be followed dure does the submission parties proceeding copies findings to the nature King. Mr. Neither
submitted is there any mandatory provision with reference to an oral findings. argument may not said, on such consequence, requirements as to the basic Michigan Reports.
procedure respects ap- were violated of which pellants complain. in this See, connection, Peoria (CCA Yellowley 7), Braumeister Co. v. 123 F2d 637. It is further insisted that the order was invalid receipt because it did not by show transmittal and report the commission of the submitted Mr. King. appear It does not from the statute that such required, specific recital was nor that a order recit- ing receipt report the transmittal and of such a possibly, Quite must be entered. procedure, as a matter of of part such an order aas is desirable proceeding, the record of the in the but instant case impressed appellants deprived we are were right. objections substantial raised appear to than be technical in nature rather sub- stantial.
It must be borne in mind that the issues in the application case were framed Parcel of the United Service and answers thereto. In other dealing investigation we are not words, with an inquiry general such a nature as that the is rather specific. proceedings involving than clearly In issues not opportunity proper orderly
defined, for given. clarification should be far as So the instant case is concerned, we think the comment of the supreme court of the United States in Consolidated Edison Co. v. National Labor Board, Relations (59 126), applicable: US S 83 L ed Ct “It cannot be said that the board did not consider petitioners’ the evidence or the brief failed to findings light make its own of that evidence argument. practice It would have been better for the board to have directed the examiner to make report opportunity excep- a tentative with an for argument tions and thereon. But, aside from the question of the brotherhood find contracts, we no concluding basis that the issues and contentions *16 clearly petitioning were not that defined and Corp. Sery. Comm. 597 v. Pub. companies fully were not advised of them. National Telegraph Mackay Labor Relations Board v. Radio & (58 Co., US S Ct 82 L 1381). points pro ed cedural due raised as the lack of process relation cannot this be sus tained.” the record On before itus said be that questions involved in the proceeding before the given proper
commission eration were due and consid body, or members of the testimony commission did not evaluate the light respective parties of the claims of the arrive at definite conclusions toas the merits of each We issue. are in accord with the conclusion of the judge process circuit that there was no lack of due regard. Bearing in this in mind the nature proceeding given rights parties think the we of all were require
due consideration and that the basic prescribed by legislature pro ments for such ceeding were observed. The claim that the order of August 6, 1957, should be held invalid because of process a lack of due law in connection with the proceedings before the commission is not tenable. Morgan, See, in this connection, United States (61 1429). US S Ct 85 L ed Appellants also attack the order of 6,1957, ground authority granted on that under the merely it the Parcel Service is contract carrier rather than a common carrier. claim Such predicated is on the limitations of said packages parcels reference to the size of the transported may be and the further restriction that by department specialty commodities sold stores shops transported shall not or from the cus- shops tomers thereof or between such stores Emphasis and branches and warehouses. also placed on fact that United Parcel ad- Service, regular weekly charge dition to the rates, makes a *17 Reposts. Michigan 360 598 daily the to service without reference for of $2.00 parcels may shipper packages or that number have that because does argued transportation. It is substance for factors Parcel Service of these recognized classification within the come personal property. common carrier (CL of motor carrier act 1 of 1 the article Section by No 232 PA as last amended 1948, 475.1, 22.531]) Supp § states in sub- [Stat Ann 1959 Cum (f) thereof: division “ any property’ ‘Commonmotor carrier of means being
person who holds himself out the to engaged in the carrier as at business common any directly through law, common either the or operate arrangement, including or who device those termini, over routes or between fixed fixed place place transportation to from motor vehicle upon prop- highways State, or over the of this the erty, any property, or of others class thereof employ who to him.” choose apparent language quoted the It is legislature defining carrier commonmotor did engage contemplate such carrier should per- transportation by kinds motor vehicle all anyone desiring property service sonal In Terminal Taxicab Co. limitation or restriction. (36 Columbia, Ct S US v. District of plain- 984), question arose whether L 60 ed passengers. In dis- a common carrier tiff was 255): (pp cussing situation, it was said business, plaintiff’s consti- next “The item tuting quarter, contracts is under about agrees enough taxicabs to furnish hotels reasonably to within certain hours and automobiles receiving hotel, exclusive meet the needs right limiting hotel, but in and about solicit per- guests We do not of the hotel. its service ceive public char- limitation removes the this Core. v. Pub. Serv. Comm. 599 acter of service, or it out of takes the definition public. in customers are limited act. No carrier serves all the His by place, requirements, ability pay and other facts.” In Public Utilities Commission v. Krol, (PUR 658), brought Mich 1929C, suit was plaintiff enjoin operat the defendant from ing freight a common carrier of between Sault *18 Chippewa county, Detour, Ste. Marie and with having granted authority by plaintiff out been so private to do. was defendant’s claim that he was a violating carrier and, was hence, not the statute carrying operation. in the on of his business The sought granted. (p 303) relief The Court quoted approval with from Public Utilities (45 Commission Duke, 266 Ct 570, 191, US 577 S 1105), 69 L ed 36 ALR where it was said: “ transportation pub- ‘Onebound to furnish to the up lic aas common carrier must all, serve capacity of his facilities, without discrimination and ” pay.’ for reasonable (pp quoted 303) approval The Court also with the definition term “commoncarrier” as stated in Jackson NY 34, Hurlbut, Architectural Iron Works v.
(52 432), Rep NE fol 70 Am St as : lows “ ‘A common carrier is who, one virtue his calling, transport compensation, undertakes, for to personal property place to another for one all every employ him; as choose to one carry compensation goods to
who undertakes for indifferently, persons liability, is, of all to to as ” a common carrier.’ deemed imply quoted obviously The definitions required common is not to furnish facilities carrier transport merchandise all classes and kinds of Michigan Reports. territory In served. other as to limitation holding need not a common carrier out words, obligation that he The in character. be unlimited public his is commensurate to serve assumes commis- holding service The defendant out. authorizing Parcel that was concluded sion carry carrier, a common business as Service to say prepared that such conclusion we are either the facts or basis of on the unwarranted was the law. applied in principles determin- general to be transportation engaging
ing whether one stated in 13 goods is common carrier hire for is pp follows: 26-28, CJS, Carriers, “The which it determined whether a test is (1) party be goods is a common carrier of is: He must engaged carrying goods for the business of public employment, must him- others as a hold ready transportation engage in self out as goods generally persons business, (2) occupation. as a He must undertake to casual carry goods confined. his of the kind business carry by (3) He must undertake to *19 his business is and over conducted, methods which (4) transportation must his established roads. be for hire. The The of a
distinctive characteristics test common carrier are those stated first set ready vis: That he himself out out holds above, transportation goods engage in the of for hire to public employment, a as a casual occu- carry pation, per- all for and that he undertakes indifferently, capacity within the limits his sons and that he is required sphere him, of the business so apply, all and is serve who liable bound sufficient to do so.” refusal, reason, for Express Railway noted that in It be also (SD NY), Agency Supp 153 F States v. United plaintiff sought orders in annulment of which 738, Core. v. Pub. Serv. Comm. granting of the interstate commerce commission public necessity certificate of convenience and operate United Parcel Service as a common car- general rier motor vehicle of commodities, with exceptions, irregular certain over described routes, plaintiff’s complaint was As in the dismissed. case charge at bar the orders issued authorized $2.00 pointed per pickup service. out, week Trucking citing Associations, Inc., American (65 States, 1499, L Ct 89 ed US S 2065), weekly charge factor was not a objection against granting of a certifi- necessity might cate of be convenience based. The also that on the basis of the Court concluded proofs necessity convenience and had been estab- judgment lished. Motion to affirm the entered Express Railway granted the district court was Agency, (78 Inc., States, v. United S Ct 355 US 257). 330, 2 L ed 2d respect power
With of the commission to grant necessity a certificate of convenience significant the character here it is involved to note § (CL article the motor carrier act 22.538]) §476.5 [Stat specifically provides Ann part that: application may granted, “Said in whole or in part, upon and certificate issued such lawful terms may impose, and conditions as said commission subject regulations to such rules and as it has or for the whole or may for lawfully prescribe, hereafter only partial sought.” privilege exercise of provision quoted intent of the obvious is con- holdings sistent of the interstate commerce proceedings involving commission the issuance necessity certificates convenience and to common carriers motor vehicles under the *20 Federal act. United Parcel Service, Inc., Common Application, M. 199; Cham Walter 68 ICC
Carrier Liquid Commodities, ICC bers Extension — pursuing further, we con discussion Without Michigan public service the order of clude that open to attack August 6, 1957, is commission of of convenience ground certificate on the necessity author granted Parcel Service to United merely operations rather a contract carrier izes truck. carrier motor than as a common question brings a consideration of the This us to validity by appellants as of the order raised of exempting Parcel Serv- provisions of minimum rate schedule ice from the It mentioned. is claimed substance above subject provisions action was such (CL motor carrier act 5, 18, of the article §22.583]), pro- §479.18 [Stat Ann and that prescribed therein followed cedure part fol- commission. In the section cited reads as : lows per- may upon application any commission “The any upon motion, or own carrier, son or motor its upon days’ parties at least 10 notice to affected opportunity thereby, be good after an cause, modify suspend, revoke, alter, or amend heard, findings orders; or but no certifi- and all of its permit amended, altered, modified, shall be
cate or impaired, except only suspended, after upon revoked, opportunity heard and to be like notice just, proof good, and sufficientcause.” clear commission and interven- behalf defendant On ing claimed Parcel Service defendant United applicable exemp- provision is not that said question. is claimed substance tion order practice the commission to that it had been grant application exemption orders giving to other notice car- motor carrier *21 Corp. v. Pub. Serv. Comm. 603 rendering territory service in the It riers affected. appellants is that some in the said also instant sought case have and obtained such orders without imposed by observance of ute now restrictions stat- Presumably are invoked. instances solely showing purpose referred to for the the in- terpretation consistently that has been observed in past type proceedings with reference to the subject procedure language indicated in the quoted. appears from the record before us the mat- charged by
ter of rates to be United Parcel Service operations in its under the certificate of convenience necessity sought that it was involved, to some hearing leading extent, certificate. It was not to the issuance of such
directly pro- involved in such ceeding for the reason that the schedule of rates required that it was to file was not then before the commission, and the determination of the issue of public necessity depend convenience did not primary thereon. Rather, the issue before the com- proofs mission necessitated toas the services ren- dered in the area affected other carriers therein, might and the shipping benefits that accrue to the applicant from the services for the prepared certificate established that it to render. Trucking In American Inc., Associations, v. United (65 2065), States, 77, 86, US S Ct L89 ed proceeding for the issuance of a certificate con- necessity operation by venience and for motor truck railroad, was said:
“Appellants objections have other to the order of the commission which have been and a considered only few words need be said about 2 of them. It objected that the railroad as a motor carrier has permitted through proceedings been other to file illegal part violative of tariffs, section 217 of 2 of improp- the interstate commerce and has been act, erly exempted from certain tbe commission ac counting requirements of section 220 of the same subject. part carriers the other motor are to which * upon appel obviously grounds These are argument against grant can base lants necessity.” convenience and certificate Agency (SD Railway Express v. United States In pointed NY), supra, out the order 741, it was *22 granting commission to interstate commerce public con a certificate Parcel Service United pursuant necessity to the Federal act venience right challenge plaintiff deprive to not did pursuant legality filed of the rate schedules adminis that such stated act. It was further said complaint remedy having exhausted not been trative citing premature, in connection to the courts was Water Carriers As National observation with such (SD NY), Supp F States sociation v. United appear appel not it does In case at bar challenge sought in a have or of them lants proceeding the rate schedules commission before the by intervening defendant. filed Applica appellants In re have cited Counsel Sons, Mich 652. In that tion Brown & Joe granted ap appears the commission case plication its for an extension of service entered accordingly. Subsequently order said was order by application filed other result of an amended as the carriers pointed in concerned. It was out the area opinion amendatory by in this its Court change substance order resulted compliance § 5, 18, with article entered, first requi act, cited, carrier was the motor above compliance with the inasmuch statute and, site, was the order of the commission was shown, former reinstate the with directions to set aside * 320,—Reporter. (1958 ed), See, currently, 49 USO §§ Corp. Pub. Serv. Comm. that the facts case were It is obvious order. nature than those involved in of different the case exempt- August 26, 1957, Here the order of at bar. ing Parcel from the minimum rate United Service prescribed in 1950 was not a modifica- schedule as it modification of tion of such order nor was by August which a certificate of 6, 1957, order of necessity granted to was convenience exemption intervening defendant. The order was appellants, urged by invalid for the reason holding. judge correct in trial so discussing issues in case fur- Without our examination of the record before us ther detail indicates that neither of the orders involved this appeal invalid of failure follow the es- because requirements prescribed procedural sential rule of the or because commission, statute requirements process failure to observe basic of due law. certificate of convenience and Under the necessity to it Parcel is a issued Service defendant truck, carrier motor as the common commission has 6, ' recognized. The order of objection open proceeding in this 1957, is not *23 part alleged authority lack of on the because partici- the members of commission of one of the hearing proofs pating received on the therein. The opinion indicates, the as the commission which, of given fair furnish full and consideration were support proper in order. basis of said August judge order of The trial found the exempted Parcel United Service 1957, which operation the minimum rate schedule the of from appellants the 1950, was not invalid because of application therefor. not notified of the this case were finding action we are accord. Such With by any modify or alter of did not the commission provisions order an of the order 1950. Such the by years the commission
had considered been exemption seeking past, there- carriers motor purview of the statute cited as not within from, procedure governing be observed when application to it for the revocation or modi- is made may prior parties affect other of a order fication merely Obviously, exempting applicant. the of the than the intervening operation defendant op- did not in and itself schedule minimum rate appellants present prejudice to the erate case. or are here- filed, If have been rate schedules bo Parcel Service United filed, after claimed to be placed approved prejudicial, if appellants operation, other these in motor remedy they before have their carriers, Express Railway pointed out. commission, as above supra; Agency States, National Water United supra. In- States, United Association v. Carriers appellants not concerned, are this case is sofar they complain of which were an order entitled subject provi- aggrieved which is rely. they procedural statute on sions affirmed, trial should be The decree of the court to defendants. with costs J., J. Carr, Kelly, concurred opin- with Mr. I concur Justice Souris, J. Carr’s validity far as it relates to the ion so respectfully August dis- However, I must order of so far it relates to the therefrom sent August exempting Parcel Service 26, 1957, provisions rate schedule minimum from the of 1950. opinion fol- can be found the trial court’s
In the concerning lowing facts statement of order: (D 3476, an order issued “In 1950 commission *24 Supp 6), setting and for contract minimum rates Corp. v. Pub. Serv. Comm. property, exempting common carriers and there- territory, from certain certain commodities and cer- tain carriers. August 15, “On and after the 1957, issuance of opinion August 1957, and order of United 6, petition seeking exemption an from Parcel the the filed August 26, 1957, above-mentioned order. On published petition commission caused the to be information and order dated bulletin, its same day, granted petition. August 28, 1957, On said plaintiffs notice the commission, served written hearing requesting held and no action be be plaintiffs opportunity providing an taken without (Emphasis added.) heard. September plaintiffs, 5, “On without a granted hearing having thereon them, been were exempting Parcel served with the from September 19, 1957, the minimum rate order. On original plaintiffs an bill com- the plaint filed amended exemption appealing herein, order.” § carrier act, of the motor vehicle CL
Article 22.583), (Stat part: provides § Ann 1948, 479.18 any upon application of “The commission upon person motion, or its own carrier, or motor parties days’ upon af- notice to at least and oppor- thereby, good cause, after fected suspend, tunity alter, amend or heard, revoke, to be findings modify any orders; but no all of or its permit altered, amended, modi- shall be certificate or except only suspended, impaired, revoked, fied, opportunity to be heard after notice like just, good, upon proof cause.” and sufficient clear noting order Au- that the commission’s While an amendment in terms of gust written 1957, con- court trial order, the minimum rate : cluded change the does so-called “That amendment any respect 26th order of
substance *25 opinion an amend- not such and in our is whatever, provisions of within the comes an order as ment of §22.583). (Stat §479.18 Ann Had 1948, CL think substance, then we been one amendment plaintiffs’ position taken, been well but have would obviously amendment.” an not such it is by language placed trial court on was Reliance Applica opinion In re in this Court’s contained tion Sons, 652, Mich where 656, & Brown Joe change of a former substance it held that was a compliance only with in strict be done order could quoted. at In the case act, 18 of the above section language in that such article trial concluded bar the court not compliance was dicated change required one of substance. not if the agree exemption opera- I of a cannot carrier’s subject previously to minimum rate order tions change exempted The is not substance. carrier a (and defendant Parcel would not contend argue Inc., this Detroit, does before Service except by opin- reference trial court’s Court, ion) August of as it that the order was not a change change it. of substance related to exemption permitted order de- authorized charge file schedule, fendant a rate carrier permitted charged rates be rates, below the competitors. other it cannot hand, its On the change 26,1957, order was said competi- affecting defendant carrier’s substance including change plaintiffs. The authorized tors, exemption permitted defendant carrier to the assume because order solely advantage competitive over them from the mini-
it freed defendant carrier them. mum rate schedule which still bound When agency an undertakes to establish administrative industry, regulated it must minimum rates for Greyhound Corp. Comm. v. Pub. Serv. uniformly, good shown for do so unless cause is do- ing otherwise. principle recognized by
This the commission promulgated minimum rate when its order in the following purposes: statement of prescribing find “We rates charges to be assessed and observed, classifi regulations govern cations and the rules and all types (except pro of motor carriers hereinaftér *26 vided) necessary is both and desirable unjust interest to remove and unreasonable rates, charges, practices, regulations, classifications, rules and and safe and provide to enable said carriers to service, adequate equipment facilities for the transportation property in intrastate commerce, transpor to foster sound economic conditions in the property by promote tation carriers, said and to adequate, carriers out economic, and efficient service motor within this State at reasonable rates with unjust preference undue discrimination, or ad vantage, competitive prac or unfair or destructive tices.” * permits §5, 18,
Article of the act amendment of prior only good upon for orders, but cause, notice parties opportunity to affected and after an for hear- ing. prescribed In the absence of the notice and August hearing, the order of 26, 1957, invalid. exemption Defendants contend that other orders hearing. have been issued the commission Testimony only relating was offered 4 or 5 hearing, orders issued without but none was there to be an Furthermore, shown absence notice. sec,- supervisor of the commission’s rates and tariffs general policy tion testified that the of the commis- hearings issuing sion was to hold before an modifying the minimum rate order whenever there Reporter. [*] Minimum rate order, D-3476, Supp 6, dated April 10, 1950.— [Sept. for made to a objection petition exemption.
was no valid reason discloses for com- The evidence with the comply plaintiffs’ failure re- mission’s statute requires. as the hearing for quest trial court I affirm the decree as it would order of reverse the August relates to to the order relates decree as in compliance for the of a decree entry remand I no none of the costs, par- would award herewith. prevailed. fully having ties Edwards, concurred with Black, JJ., Smith, Souris, J. did not sit. J., Kavanagh, J., C.
Dethmers, OF STATE. v. SECRETARY KEYES Nominating Petitions —Circulation—Statutes. Elections — governor prop- were lieutenant office of Nominating petitions *27 they board, eanvassing where failed to rejected State erly circulated, city they township were where or in which show township township or in 1 more than they were circulated jurats reference city, thereto made adjoining where the or they comply township, city did since nonexistent to a setting petition forth a specifically pertinent statute county, township, in which circu- city or must indicate in more than circulated lated, providing (CLS 168.544). township city or § Points Headnotes References Jur, 120. [1, 5-7, Am18 Elections § 9] Jur, 122. [2, Am Elections § affecting signer qualification as of nom- Nonregistration one’s 1310., petition. 100 ALR inating Jur, 120. Am Elections §§ [4] [8] [10] Jur, Notary 39 Am Public 17. Jur, Am Elections §