Attorney General v. Public Service Com'n, Docket No. 78882

• Decision Date: 01 May 1987
• Docket Number: Docket No. 78882,No. 15,15
• Citation: 429 Mich. 248,414 N.W.2d 687
• Parties: ATTORNEY GENERAL, Plaintiff-Appellee, v. PUBLIC SERVICE COMMISSION, Defendant-Appellant, and Southeastern Michigan Gas Company, Intervening Defendant-Appellant. Calendar,
• Court: Michigan Supreme Court

Page 687

414 N.W.2d 687

429 Mich. 248

ATTORNEY GENERAL, Plaintiff-Appellee, v. PUBLIC SERVICE COMMISSION, Defendant-Appellant and Southeastern Michigan Gas Company, Intervening Defendant-Appellant.

Docket No. 78882.

Calendar No. 15, May Term, 1987.

Supreme Court of Michigan.

Argued May 6, 1987.

Decided Oct. 30, 1987.

Louis J. Caruso, Hugh B. Anderson, Donald E. Erickson, for plaintiff-appellee Frank J. Kelley, Atty. Gen.

Don L. Keskey, Philip J. Rosewarne, Lansing, for defendant-appellant Michigan Public Service Com'n.

Lawrence J. Gagnon, Ronald W. Bloomberg, Loomis, Ewert, Ederer Parsley, Davis & Gotting, Lansing, for intervening defendant-appellant Southeastern Michigan Gas Co.

LEVIN, Justice.

A statute provides that a party dissatisfied with a rate-fixing order of the Michigan Public Service Commission may file an action seeking judicial review within thirty days "from the issuance of such order and notice thereof." ¹

Another statute empowers the commission to grant rehearings, ² and provides that the time allowed for commencing an action to review an order of the commission "shall continue after the order denying a rehearing or made upon a rehearing, for the same number of days" provided for review of the order upon which rehearing was sought. ³

The question presented is whether the filing of a petition for rehearing of an order of the MPSC merely interrupts or tolls the running of the thirty-day period allowed for review of the order, or, alternatively, postpones the commencement of the running of the appeal period so that the appeal period does not begin to run until the motion for rehearing is acted upon. We are persuaded that the latter construction is correct. The thirty-day period begins to run anew from the time rehearing is denied.

I

The MPSC issued two orders on June 1, 1983. ⁴ Thirty days later, on July 1, 1983, the Attorney General filed for rehearing of both orders. Rehearing was denied three months later, on September 27, 1983. Thirty days later, on October 27, 1983, the Attorney General filed a complaint in the Ingham Circuit Court seeking review of the June 1, 1983 orders.

The MPSC moved ⁵ for accelerated judgment, asserting that the circuit court lacked jurisdiction because this action was not filed within the thirty-day period. Southeastern was permitted to intervene. ⁶

The circuit court granted the MPSC's motion and dismissed this action ⁷ on the ground that it had not been timely commenced. The court ruled that the running of the thirty-day period is merely interrupted by the filing of a petition for rehearing, and that a full thirty-day period does not start anew when rehearing is denied. Since 148 days had elapsed between the June 1, 1983 issuance of the orders and the October 27, 1983 commencement of this action, and excluding the eighty-eight days that elapsed between the filing for rehearing and denial, this action was commenced sixty days after issuance of the orders and not within thirty days.

The Court of Appeals reversed and remanded this cause to the circuit court for further proceedings. ⁸ The Court held that the statute provides thirty days from the denial of a petition for rehearing to file an action in the circuit court. Since the Attorney General had filed this action within thirty days of the denial of rehearing, the action was timely commenced. ⁹

II

The statute provides not only that the time allowed to bring proceedings for review "shall continue" after the order denying rehearing, but that the continuation is "for the same number of days now provided by law for review of the order." ¹⁰ The additional words, "for the same number of days," mean, we are persuaded, that the period for review continues to run for a full thirty days after a denial of rehearing.

We agree with the reasoning of the Court of Appeals:

"We read this additional qualifying language as providing that the appeal period continues after denial of a rehearing for thirty more days, i.e., the same amount of time as the party originally had to file a complaint for judicial review. To interpret the statute as urged by defendants would be to hold that the statute means the same thing with or without the language 'for the same number of days now provided by law for review of the order upon which such rehearing was denied or had.' We are not prepared to say that this language is mere surplusage in view of the rule of construction that ascribes to the Legislature an intent to give meaning to every word in a statute." Attorney General v. Michigan Public Service Comm., 152 Mich.App. 427, 431-432, 394 N.W.2d 35 (1986).

III

The MPSC and Southeastern rely on a dictionary definition of the word "continue" and on two cases construing that term. ¹¹ Their argument might be more persuasive if the statute stated only that the time allowed for seeking review of an order of the commission "shall continue after the order denying the hearing," ¹² and did not specify that the appeal period shall continue "for the same number of days now provided for law for review of the order." ¹³

The MPSC argues that the recent amendment of the statutory provision providing the thirty-day time limit ¹⁴ evidences a legislative intent to impose a strict thirty-day limit in the aggregate. The amendment provides for direct appeals from the MPSC to the Court of Appeals instead of to the circuit court. The appeal period both before and after the amendment is thirty days. The amendment casts no light on the constructional issue presented in the instant case.

The MPSC and Southeastern argue that the similarity between the statute governing this appeal and the statutes governing motor carrier ¹⁵ and water company ¹⁶ appeals favors their position. They contend that the Legislature would not have used similar language for all three statutes if it had not intended that they be construed similarly. The statutes, they claim, provide a uniform scheme governing appeals from the MPSC. ¹⁷ The water company statute clearly favors, they assert, a tolling construction, and the motor carrier statute has been so construed. It is likely, they argue, that the Legislature also intended that a petition for rehearing under the instant statute merely toll the running of the period and not postpone the commencement of the running of the period. They add that construing the instant statute differently from the other statutes will only lead to needless confusion. ¹⁸

If the three statutes were, indeed, part of a uniform scheme for dealing with MPSC appeals, that might evidence a legislative intent that the different statutes said more or less the same thing, and it might be reasonable to refer to the other statutes as guides in construing the instant statute. It does not follow that we may ignore significant differences in language. ¹⁹

There is no reason to suppose that litigants will be confused if these statutes are not construed to have the same meaning. Lawyers will know whether they are handling a motor carrier, a general utility, or a water company case, and they can readily discern the different requirements for each.

The MPSC and Southeastern argue that allowing the appeal period to run anew after the period for rehearing has expired would be counter to the intent of the Legislature to provide for expeditious proceedings. Southeastern further argues that the effect of giving parties an additional thirty days to seek review will be to encourage them to file for rehearing when they might not otherwise do so, thus clogging the MPSC's rehearing process.

We agree with the Court of Appeals that the additional period of time added to the appeal period--at most thirty days--is not a significant factor in the speed of review. The appeals process can, and often does, stretch on for years in MPSC cases. An additional one to thirty days is not, in that context, significant. One cannot reasonably infer from a legislative purpose to require expeditious review that tolling rather than postponement of the commencement of the running of the thirty-day review period was intended.

If there are appellants who would file a petition for rehearing solely to extend the time they have to prepare an appeal, the postponement-of-the-commencement construction of the instant statute will give them little more incentive than they would have under the tolling construction. The most extensive delay is likely to occur while the MPSC considers the petition for rehearing, which may take a number of months, as it did in this case. A party seeking to delay the proceedings gains, at most, an additional thirty days.

In this connection, we observe that it is generally considered desirable that the parties exhaust all their administrative remedies before seeking judicial review. ²⁰

IV

The MPSC and Southeastern rely on decisions of this court to support their construction of the instant statute. None are on point. ²¹ These cases construe statutes that are significantly different from the instant statute. Unlike the instant statute, none of them provide respecting the appeal period after filing for rehearing.

The MPSC and Southeastern claim that the common-law rule in Michigan has been that a petition for rehearing has no effect on the running of the appeal period unless a specific statute provides otherwise. The instant statute, in changing the common-law rule, should be construed, they argue, at most to interrupt the running of the thirty-day appeal period, and not to provide for renewed running of the thirty-day appeal period upon denial of the petition.

The "derogation of common law" canon of statutory construction is applicable when a court construes an ambiguous statute that arguably alters a common-law rule. ²² In the cases cited by the MPSC and Southeastern, this Court construed statutes. That is not the same as interpreting a statute in such a manner that it conflicts with a rule of common law.

V

The MPSC and Southeastern argue that statutes in other...