Opinion
Calendar No. 50,171.
Rehearing denied February 6, 1963. Writ granted December 31, 1962.
Original mandamus by Central Transport, Inc., a Michigan corporation, against Marvin J. Salmon, Ingham Circuit Judge, to compel dissolution of temporary injunction, obtained in suit by National Automobile Transporters Association and Michigan Intra-State Motor Tariff Bureau, Inc., restraining the Michigan public service commission from authorizing or permitting Central Transport, Inc., to continue trucking operations pending rehearing on rates. Submitted December 13, 1962. (Calendar No. 50,171.) Writ granted December 31, 1962. Rehearing denied February 6, 1963.
Sullivan, Elmer, Eames Moody ( Rex Eames of counsel), for plaintiff.
Matheson, Dixon Bieneman ( Walter N. Bieneman and Joseph A. Lavey, of counsel), for defendant.
September 25, 1961, National Automobile Transporters Association filed with the public service commission a "Complaint against and petition for investigation of unreasonable and unlawful rates published by defendant." The complaint named as defendant the present plaintiff in mandamus, Central Transport, Incorporated. September 13, 1962 (served as required by statute September 26, 1962), the commission entered an order adjudging that Central's published motor carrier rates were unlawful. One of the 3 commissioners dissented. October 5th Central filed before the commission a petition for rehearing of and stay of the commission's order dated September 13th. October 9th complainant NATA filed reply to Central's said petition and prayed denial thereof "forthwith." October 24th the commission served on the parties in interest an order (dated October 18th) reading:
"In consideration of the petition for rehearing and stay of order filed by the defendant herein, the effective date of this commission's order in the above-entitled matter, dated September 13, 1962, is hereby stayed until further notice, and the matter is scheduled for rehearing at 9:30 a.m. on Thursday, November 29, 1962, at the offices of the commission, Lewis Cass building, Lansing, Michigan. Interested parties should be present."
October 31st National Automobile Transporters Association, joined by Michigan Intra-State Motor Tariff Bureau, filed a bill in the Ingham circuit alleging that the commission had no power or authority to stay and rehear as it had ordered. The prayer was that the commission be temporarily and permanently enjoined and restrained "from authorizing or permitting said Central Transport Co., Inc., to continue operations in violation of the defendant commission's order of September 13, 1962."
November 14th the chancellor entered a restraining order as follows:
"It is hereby ordered, adjudged and decreed that: during the pendency of this litigation, the purported order of the defendant Michigan public service commission dated October 18, 1962 in docket T-177 entitled National Automobile Transporters v. Central Transport, Inc., be temporarily suspended and stayed and the defendant commission be temporarily restrained and enjoined from authorizing or permitting Central Transport, Inc., to continue operations in violation of its order of September 13, 1962, in the above named proceeding."
Central by original petition for mandamus would compel vacation of the last quoted order. It alleges that the commission's order for stay and rehearing was discretionarily authorized by section 18 of article 5 of the motor carrier act. Said section 18 is officially cited as CL 1948, § 479.18. The substance of the respondent circuit judge's return is:
Stat Ann § 22.583. — REPORTER.
"Without in any way determining the ultimate merits of the proceeding, and in the light of the matters and things herein set forth, defendant concluded that the opinion and order of the Michigan public service commission dated September 13, 1962, had become finally effective prior to October 18, 1962, and the subsequent order of October 18, 1962, constituted an amendment or modification of substance which could not lawfully be made without notice and hearing. Defendant further concluded that there had been a substantial and convincing prima facie showing before the defendant that the Michigan public service commission had exceeded its powers and had acted unlawfully and arbitrarily in issuing its purported order of October 18, 1962."
Upon examination of section 18 we find that the legislature intended the commission should have plenary power (for cause good in the commission's view and subject to statutory "appeal") to stay — "suspend" the statute says — "any and all of its findings or orders" provided the required notice and opportunity to be heard is supplied to the "parties affected thereby." Further, section 18 grants due authority to rehear as done here; Central's petition for such rehearing having been filed within the time for "appeal" allowed by subsequent section 20 (CLS 1956, § 479.20 [Stat Ann 1961 Cum Supp § 27.585]).
The plaintiffs in the chancery suit, likewise the respondent in the present proceeding, make no claim that the commission denied said plaintiffs the notice and opportunity of hearing section 18 requires as a condition of consideration and determination of a petition to revoke, suspend, et cetera.
That the order dated September 13th went into effect (see section 14a; CL 1948, § 479.14a [Stat Ann 1961 Cum Supp § 22.579(1)]) on October 16th did not affect or impair the commission's power to consider and determine Central's petition for rehearing. The power to rehear under section 18 is analogous to the statutory power of a probate court to rehear and reconsider an order already in effect. See In re Fletcher's Estate, 265 Mich. 234, 236. Here as in Fletcher the statute (said section 18) retains the power to rehear provided a petition therefor is filed during the 30-day period specified in section 20.
Since there is no showing that the commission so far has abused the discretion conferred upon it by said section 18, the circuit judge will vacate his order of November 14th. No costs.
CARR, C.J., and DETHMERS, KELLY, BLACK, KAVANAGH, SOURIS, OTIS M. SMITH, and ADAMS, JJ., concurred.