Docket No. 65, Calendar No. 38,368. | Mich. | Dec 10, 1935
Petitioner, then operating as a "limited common carrier," requested "an extension of service in the transportation of: iron and iron products between Muskegon, Grand Rapids and Detroit and various points intra- and interstate." Following a hearing on June 14, 1934, at which time those opposing the petition were represented, the commission, by its order dated June 25th granted an extension of service "limited to the transportation interstate and intrastate of: iron and iron products between Muskegon, Grand Rapids and Detroit and various points." *654
The next day it requested that the permit be returned for correction, stating:
"We find that the permit issued today does not conform with the language of the commission's resolution authorizing it. The permit should read limited common carrier extension of service to transport iron and iron products from Muskegon, Grand Rapids and Detroit to various points intra- and interstate."
Why the commission withheld its corrected order until August 6th is not disclosed by the record; however, upon that date it did not enter the order in the language indicated by its letter of June 26th, but used these words:
"Limited to the transportation intrastate and interstate of: iron and iron products between Muskegon and various points, between Grand Rapids and various points and between Detroit and various points."
Up to this point everyone seemed satisfied despite the somewhat dilatory rearrangement of words. Several of petitioner's competitors then sought a rehearing by a petition subscribed August 24th and entered in the commission's calendar as having been received August 26th. Appellant claims it was not advised as to the rehearing until October 17th and in the meantime had invested $19,524.18 in additional equipment and leased a building in Muskegon at an annual rental of $1,000.
The commission considered the petition for rehearing on November 27th and took the matter under advisement. The rehearing was conducted by the commission on December 18th followed by an order dated January 16, 1935, which limits petitioner's operations to "transportation inter- and intrastate of: automobile castings and automobile cylinder *655 blocks of Campbell-Wyant-Cannon Foundry Company, coil springs, and sheet steel, scrap iron and scrap metals, and used machinery between Muskegon and various points, between Grand Rapids and various points and between Detroit and various points."
Appellant obtained leave to appeal from this order and claims that the petition for rehearing should have been denied because it presented no new questions of law or fact and was not seasonably filed; that if the rehearing be in effect an amendment, alteration or modification of the original order that good, just and sufficient cause was not shown, and further that the order of January 16th fostered a monopoly, disregarded public safety, infringed upon applicant's constitutional rights and destroyed its character as a limited common carrier by converting its business into that of a contract or private carrier.
Appellees say that instead of correcting a clerical error, the order dated August 6th expressed a new decision upon which a petition for rehearing was timely filed and therefore the commission could, upon such rehearing, if persuaded of error make an amendatory or modifying order limiting petitioner as to the class of property transported, its routes, termini and shippers but not in such a manner as to permit transportation of that which could fall within the classification of general freight.
No rehearing was asked or appeal sought from the order of June 25th. If this order contained a clerical error, no one can seriously question the right of the commission to make such corrections as do not change its form and substance. Such was the action of August 6th though not expressed precisely in the language of the commission's letter of June 26th. *656
The powers of the commission are derived solely from the statutes, Taylor v. Michigan Public Utilities Commission,
The subsequent action of the commission resulted in a change of the substance of the former order, which could only be done in strict compliance with that part of art. 5, § 18 of the act which reads:
"The commission may upon application of any person or any motor carrier, or upon its own motion, and upon at least ten days' notice to the parties affected thereby, for good cause and after an opportunity to be heard, revoke, suspend, alter, amend or modify any and all of its findings or orders; but no certificate or permit shall be amended, altered, modified, revoked, suspended or impaired except only after like notice and opportunity to be heard and upon clear proof of good, just and sufficient cause." *657
The record before us does not contain a copy of such notice nor is there any indication that such statutory action was taken.
The other questions propounded by the briefs and raised in the petition for rehearing cannot be considered because of our holding that the petition itself was not seasonably filed; nor do we pass upon the commission's authority to classify a "motor carrier" as a "limited common carrier," that question not having been formally presented and passed upon in the record before us.
The order of January 16, 1935, is set aside and the matter remanded to the commission with instructions to re-instate its order of August 6, 1934, effective, however, as of June 25, 1934. Costs to appellant.
POTTER, C.J., and NORTH, FEAD, WIEST, BUTZEL, and EDWARD M. SHARPE, JJ., concurred.
The late Justice NELSON SHARPE took no part in this decision.