Associated Truck Lines, Inc. v. Michigan Public Service Commission

• Decision Date: 08 March 1966
• Docket Number: No. 46,46
• Citation: 140 N.W.2d 515,377 Mich. 259
• Parties: ASSOCIATED TRUCK LINES, INC., Earl C. Smith, Inc., Great Lakes Express Company, Ogden & Moffett Company, Interstate Motor Freight System, Inc., Dundee Truck Lines, Inc., Intercity Trucking Service, Inc., C. H. Rumpf & Son Truck Lines, Inc., United Trucking Service, Inc., W. Ford Johnson, Inc., and H. & G. Cartage Company, Plaintiffs and Appellees, Jones Transfer Company, Intervening Plaintiff and Appellee, v. MICHIGAN PUBLIC SERVICE COMMISSION, Defendant, and Yellow Transit Freight Lines, Inc., Central Transport, Inc., Intervening Defendants and Appellants.
• Court: Michigan Supreme Court

Page 515

140 N.W.2d 515

377 Mich. 259

ASSOCIATED TRUCK LINES, INC., Earl C. Smith, Inc., Great Lakes Express Company, Ogden & Moffett Company, Interstate Motor Freight System, Inc., Dundee Truck Lines, Inc. Intercity Trucking Service, Inc., C. H. Rumpf & Son Truck Lines, Inc., United Trucking Service, Inc., W. Ford Johnson Inc., and H. & G. Cartage Company, Plaintiffs and Appellees Jones Transfer Company, Intervening Plaintiff and Appellee, v. MICHIGAN PUBLIC SERVICE COMMISSION, Defendant and Yellow Transit Freight Lines, Inc., Central Transport, Inc., Intervening Defendants and Appellants.

No. 46.

Supreme Court of Michigan.

March 8, 1966.

Matheson, Dixon & Bieneman, John M. Veale, Detroit, Joseph Lavey, Lansing, for plaintiffs and appellees.

Clark, Klein, Winter, Parsons & Prewitt, Arthur P. Boynton, Alan M. Shaver, Detroit, for intervening defendant and appellant Yellow Transit Freight Lines, inc.

Snyder, Loomis & Ewert, George W. Loomis, William D. Parsley, Lansing, for intervening defendant and appellant, Central Transport, Inc.

Before the Entire Bench, except DETHMERS, J.

O'HARA, Justice.

This appeal from the Ingham county circuit court reviews an order of that court which vacated and reversed a finding of the Michigan public service commission.

The finding of the commission was:

'We are not convinced, however, drastic though it may have been, that the action of the carrier was such as to result in abandonment * * *. Abandonment or discontinuance should only be found as a result of more positive action than is here indicated * * *.

'Accordingly, we find that Yellow Transit Freight Lines, Inc. has not abandoned or discontinued service contrary to the provisions of the Motor Carrier Act.'

The circuit court made a contrary finding. The substance thereof is herewith set forth:

'* * * Obviously if a carrier deliberately is avoiding intrastate traffic the time eventually arrives when it will not be tendered such movements. The logical inference is that this is what happened in this case. Its conduct in our opinion was equivalent to an outright refusal.'

The involved statute ¹ provides:

'* * * No common motor carrier authorized by this act to operate shall abandon or discontinue any service established under the provisions of this act without an order of the commission. Any certificate under which service is discontinued for more than 10 days without the previous order of this commission authorizing the same shall be deemed to be revoked without mission.'

Appellee-carriers, filed on May 17, 1961, a complaint requesting that the commission enter upon an investigation of the nature of the operation conducted intrastate by Yellow, ² and that it enter its order finding that specific segments of Yellow's certificate of public convenience and necessity were revoked by operation of law. Request was further made to amend the certificate by eliminating therefrom alleged dormant authority between specified Michigan points. Yellow answered. The matter was set for hearing. For 3 days, the commission took testimony and received exhibits. Thereafter, it made its determination. It is record-supported that a policy claimed by appellees to have resulted in the abandonment or discontinuance of service came to their attention when Yellow made overtures to them to purchase their intrastate certificate and some of their equipment. Appellees claim that after investigation of Yellow's operation, they were convinced the authority had lapsed and they discontinued negotiations for purchase.

A hearing on appellees' complaint was, in part, held October 25, 1961, and adjourned for further hearing. Shortly thereafter, appellees amended their pending complaint to allege that substantially all of Yellow's intrastate service in Michigan had been discontinued.

Further hearings were held before the commission December 20 and 21, 1961, and the record was supplemented by a deposition taken January 29, 1962.

Meanwhile, Yellow had interested another potential purchaser, Central Transport, Inc. Satisfactory terms apparently were agreed upon and an application to transfer Yellow's authority to Central was filed with the commission. The proposed transfer was included in the commission's bulletin ³ of May 28, 1962. Counsel for appellees instanter wired a protest and requested hearing on the question of the alleged dormancy. We find no hearings held, nor other supplements to the record, after the deposition taken January 29, 1962.

The day following their telegraphic protest to the transfer application, appellees filed a bill of complaint in the Ingham county circuit court alleging, on information and belief, that the commission intended, without prior hearing, to approve the transfer and permit the institution of service by Central Transport over Yellow's intrastate route. They accompanied their bill with a prayer for injunctive relief. A temporary restraining order was issued by the court on June 4, 1962. On December 24, 1963, the circuit court entered a judgment wherein it decreed that the certificate of public convenience and necessity here involved was 'void, invalid and revoked by operation of law.' From that judgment, appeal was taken.

While the immediate issue here is validity or invalidity of the concerned certificate, the superseding legal principle is the nature and scope of judicial review by the Ingham county circuit court of orders of the Michigan public service commission.

The appeal procedure governing the instant case provides that 'the burden of proof shall be upon the complainant [appellees here] to show by clear and satisfactory evidence that the order of the commission complained of is unlawful or unreasonable * * *.' This legislative prescription of not rendered any easier to compound when it is complicated by the following quixotic language: ⁴

'Any party to such suit may introduce original evidence in addition to the transcript of evidence offered to said commission * * *. If, upon the trial of such action, evidence shall be introduced which is found by the court to be different from that offered upon the hearing before the commission, or additional thereto, the court, before proceeding to render judgment, unless the parties in such action stiputate in writing to the contrary, shall transmit a copy of such evidence to the commission * * *. The commission may, upon receipt and consideration of such evidence alter, modify, amend or rescind its order and shall report its action thereon to the court within 10 days from the receipt of such evidence.' (Emphasis supplied.)

A circuit court is hard put to apply traditional concepts of administrative review to a proceeding in which it is also empowered to receive original evidence.

Working with the tools at hand, however, we review the circuit court's opinion and judgment. Under the statute it was the burden of plaintiffs-appellees to show, by clear and satisfactory evidence, that the order of the commission was unlawful or unreasonable. No reference in this statute is made to distinctions between questions of 'law' and of 'fact' or to the 'conclusiveness' of the latter when found by the commission. No additional testimony was taken in the circuit court. We therefore must determine whether the transcript of testimony and the exhibits which made up the record before the commission contained 'clear and satisfactory evidence' which showed the commission's order to be unlawful or unreasonable. The burden of proof of so showing is statutorily upon complainants-appellees. To sustain this burden, they rely in principal part on their claim that Yellow discontinued service under its certificate for more than 10 days without prior commission approval.

In support of this claim they rely both on exhibits received in evidence before the commission, and testimony. The purport of the exhibits is that after January 1, 1961, Yellow had so curtailed its intrastate shorthaul service that it was virtually nonexistent, and that for the months of June and July of that year no intrastate shipments were originated in any of its Michigan terminals. The oral testimony relied on consists of admissions elicited on cross-examination of Yellow's witnesses, testimony of former employees thereof and that of employees of competing carriers, all of which it is claimed established incontrovertibly that appellant Yellow did as a matter of fact discontinue its Michigan intrastate short-haul operations.

Per contra, Yellow says, in effect, it did drastically curtail its intrastate operations which were shown by an analysis to have been unprofitable; it did adopt a studied management policy to discourage this type of traffic; it closed certain of its terminals which were duplications of facilities of purchaser-Central Transport; it arranged with other carriers to pick up any short-haul intrastate shipments which were tendered it, but it neither abandoned nor discontinued service within the meaning of the statute.

One of the complications of the instand case arises from the method of reporting mileage by certificated carriers to the intervening appellant-commission. Under its requirement, Michigan domiciled carriers must report for the purpose of assessing ton-mile taxes all of their Michigan mileage, both in inter and intrastate traffic. It is the claim of appellees that the mileage reported by Yellow was for interstate shipments, while appellants contend that by reason of the mixing of intra and interstate freight in the same unit, the mileage reported could as well be found to be for intrastate mileage as for interstate.

That the able and experienced examiner for the commission was aware of the conflict is disclosed by the following excerpt from the record. Lawrence Knapp, called as a witness for complainant-appellees, testified:

'Q. The mileage reports which you inspected, Mr. Knapp, did they contain any breakdown between inter and intrastate miles operated in Michigan?

'A. No,...