Chesapeake & O. Ry. Co. v. Michigan Public Service Commission, 15

• Citation: 382 Mich. 8,167 N.W.2d 438
• Decision Date: 05 May 1969
• Docket Number: No. 15,15
• Parties: The CHESAPEAKE AND OHIO RAILWAY COMPANY, Plaintiff-Appellee, v. MICHIGAN PUBLIC SERVICE COMMISSION, City of Grand Rapids, City of Detroit, City of Wyoming, and Railroad Brotherhoods, Defendants-Appellants. CITY OF GRAND RAPIDS, Plaintiff-Appellant, and Frank J. Kelley, Attorney General, Michigan Public Service Commission, City of Detroit, City of Wyoming, and Railroad Brotherhoods, Intervening Plaintiffs-Appellants, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellee.
• Court: Supreme Court of Michigan

Page 438

167 N.W.2d 438

382 Mich. 8

The CHESAPEAKE AND OHIO RAILWAY COMPANY, Plaintiff-Appellee, v. MICHIGAN PUBLIC SERVICE COMMISSION, City of Grand Rapids,

City of Detroit, City of Wyoming, and Railroad

Brotherhoods, Defendants-Appellants.

CITY OF GRAND RAPIDS, Plaintiff-Appellant,

and

Frank J. Kelley, Attorney General, Michigan Public Service

Commission, City of Detroit, City of Wyoming, and Railroad Brotherhoods, Intervening Plaintiffs-Appellants, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellee.

No. 15.

Supreme Court of Michigan.

May 5, 1969.

Paul C. Younger, Lansing, Allan F. Schmalzriedt, John J. Holden, Detroit, for The Chesapeake and Ohio Railway Co

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Hugh B. Anderson, David P. Van Note, Asst. Attys. Gen., Lansing, for Michigan Public Service Commission.

Steven L. Dykema, McDonald, Anderson & Dykema, Grand Rapids, for City of Grand Rapids.

William J. Garlington, City Atty., Wyoming, for City of Wyoming.

Roger P. O'Connor, Asst. Corp. Counsel, Detroit, for City of Detroit.

Jacob I. Alspector, Alspector, Sosin & Mittenthal, Detroit, for Railroad Brotherhoods.

Before the Entire Bench.

ADAMS, Justice.

I. The Facts and Proceedings

In November 1964, the Chesapeake and Ohio Railway Company announced by public notification that effective January 3, 1965, it would discontinue operating passenger trains Nos. 14 and 15, running daily except Sunday between Grand Rapids and Detroit. These trains were one of three pairs of trains in which the railroad carried passengers on runs between those cities, the additional trains being designated as Nos. 11 and 12 and Nos. 19 and 20.

Train No. 11 was made up of a diesel locomotive, one mail car, one diner, two streamlined coaches and one roadrailer. Train No. 12 was identical to No. 11 except that it carried three roadrailers. A roadrailer is described as a truck-trailer with both rubber tires and steel wheels. It is used to carry mail, express, and other commodities and is capable of being taken off the rails and transported to a postoffice or other location. Train No. 14 matched No. 11 in equipment. Train No. 15 was identical with train No. 12. These four trains had operated on the following schedules since September 1, 1946:

Train No. 11. Lv Detroit 8:30 AM. Ar Grand Rapids 11:35 AM.

Train No. 12. Lv Grand Rapids 3:30 PM. Ar Detroit 6:30 PM.

Train No. 14. Lv Grand Rapids 7:30 A.M. Ar Detroit 10:30 AM.

Train No. 15. Lv Detroit 5:20 PM. Ar Grand Rapids 8:25 PM.

All four trains made regularly scheduled stops at Lansing and Plymouth with a flag stop at Lake Odessa. Trains 14 and 15 made an additional flag stop at Howell.

Trains Nos. 19 and 20 began operating about June 1, 1960. The fact that the C & O could get a new mail contract with the Federal postal department was the primary reason for placing them into service. For some time prior to November 1964, the equipment of the two trains was identical consisting of a diesel locomotive, one mail car, one streamlined combination baggage-passenger coach and six roadrailers. Train 19 was scheduled to leave Detroit at 11:40 PM., arriving at Grand Rapids at 2:55 AM with a regular stop at Lansing. Train 20 left Grand Rapids at 11:10 PM arriving at Detroit at 2:20 AM with a stop at Lansing.

The legislature by the enactment of P.A.1941, No. 134, amended section 13 of the railroad regulation act (P.A.1909, No. 300) '(c) Passenger service shall not be discontinued in this state without the permission of the commission and unless the railroad desiring to discontinue such service shall first file a petition with the commission, and hearing is held thereon as provided in section 22 of this act. The commission at such hearing shall inquire into the convenience and necessity of the service to the public and shall render its decision thereon. At any hearing upon such petition any person, association, corporation, municipality or governmental unit whose interests shall be adversely affected by the discontinuance of the service, may petition the commission for leave to intervene in said proceedings and participate therein as a party. If it shall appear to the commission from the state of said applicant's interests that said interests may be adversely affected by the discontinuance of service, the commission shall grant permission to intervene: Provided, however, That the provisions of this act shall not apply to the revision of passenger service schedules, the consolidation of passenger trains, temporary or seasonal trains, nor to any railroad operating more than 2 passenger trains in each direction on a week day on the portion of the railroad affected;

to add two new subsections, reading as follows:

'(d) Any common carrier, or other party in interest, being dissatisfied with any order of the commission made under the provisions of this section, shall have the same rights to appeal and review as provided under section 26 of this act, as last amended.'

These added subsections remained unchanged until 1965. C.L.1948, § 462.13 (Stat.Ann.1963 Cum.Supp. § 22.32).

Following the November announcement of discontinuance of trains 14 and 15, on December 1, 1964, the Michigan public service commission gave notice of its intention to investigate. It held a public hearing on December 21, 1964. C and O filed a special appearance and motion to dismiss but the commission, basing its decision on a finding that trains 19 and 20 were not passenger trains within the meaning of the proviso clause of the statute, ordered the railroad to continue to operate trains 14 and 15 until it obtained approval for discontinuance.

Two separate lawsuits evolved from the commission's order: one, in the Superior Court of Grand Rapids brought by that city against the railroad company; the other, appeal by the railroad to the Ingham county circuit court. The public service commission, the Attorney General, and the cities of Detroit, Lansing and Wyoming intervened in the Grand Rapids case. A temporary restraining order was issued prohibiting the railroad from discontinuing trains 14 and 15 without approval from the commission. The case was transferred to the Ingham County Circuit Court and assigned number 2856--C. The railroad's appeal had been designated as case No. 2758--C. Trial of the cases resulted in judgments on April 19, 1965: in case No. 2856--C denying the prayer for injunction and dissolving the temporary restraining order obtained by the City of Grand Rapids; and in case No. 2758--C temporarily restraining the commission from enforcing its order against the railroad company.

Between the date of the filing of the trial judge's written opinion on April 7, 1965 and the entry of the judgments on April 19, 1965, the statute was changed by the passage of P.A.1965, No. 15, effective April 16, 1965, which amended the proviso clause to read: 'The provisions of this act shall not apply to temporary or seasonal trains.' Stat.Ann.1968 Cum.Supp. § 22.32(c).

On the date the amendatory act became effective, the public service commission filed motions to dismiss both cases on the ground that the issues had become moot. The motions were denied on April 22, 1965.

Appeals were taken in both cases to the Court of Appeals. Upon review, that Court ordered dismissal of case No. 2856--C for lack of jurisdiction and in case No. 2758--C vacated the commission's order with permanent injunction against its enforcement. 5 Mich.App. 492, 509, 147 N.W.2d 469.

Upon an application for leave to appeal being filed in this Court, the case were remanded to the circuit court, by order entered June 8, 1967, for reconsideration in the light of Southgate v. Slay, State Banking Commissioner, 379 Mich. 1, 148 N.W.2d 858. The judgment of the Court of Appeals was stayed, the railroad being enjoined and restrained from discontinuing any of its passenger trains between Detroit and Grand Rapids during pendency of the proceedings and until further order of the circuit court.

June 19, 1967, the C & O filed a motion in the circuit court in case No. 2758--C to set aside the stay of proceedings previously issued by that court which would thereby reinstate the injunctive judgment against the public service commission entered on April 19, 1965.

On July 3, 1967, the public service commission, joined by the intervenors, filed a motion for summary judgment in both cases. July 7, 1967, the circuit judge announced his opinion on remand, saying in part:

'The Order of the Supreme Court in the case at bar, stays the judgment of the Court of Appeals and gives no instruction as to how the Circuit Court is to further handle the matter, other than what conclusion may be drawn from the statement, quote--'in light of Southgate Bank vs. State Banking Commission.'

'It will be noted in the Southgate case that the Supreme Court did not expressly vacate the judgment however, this conclusion was drawn by the author of the synopsis in volume 379 Mich 1 at page 3.

'This court is unable to make such an assumption in this case because the Supreme Court's Order specifically states that the Court of Appeals' decision is stayed. Unless this Court receives further or different instructions from the Supreme Court it feels that it is bound by the Court of Appeals decision interpreting the amendment here in the case at 5 MA 492.'

The motions for summary judgment were denied and the request to lift the injunction (stay) was also denied. An order was entered August 1, 1967 by the circuit judge stating his inability to comprehend the order of remand by this Court so as to comply with it. The case was transmitted to the Supreme Court by the circuit court clerk on August 16, 1967 and returned without comment on September 25, 1967 to the circuit court. The circuit judge in an opinion filed November 8, 1967, believing himself bound by the decision of the Court of Appeals, determined that the railroad was entitled to discontinue the trains.

Judgment was...