Detroit Edison Co. v. Department of Treasury, 13
Citation | 382 Mich. 497,170 N.W.2d 39 |
Decision Date | 03 September 1969 |
Docket Number | No. 13,13 |
Parties | The DETROIT EDISON COMPANY, a New York and Michigan corporation, Plaintiff-Appellant, v. The DEPARTMENT OF the TREASURY of the State of Michigan, the Corporation Franchise Fee Division of the Department of Treasury, Allison Green, as State Treasurer, and Lloyd L. Anderson, as Deputy State Treasurer, Defendants-Appellees. |
Court | Supreme Court of Michigan |
Fischer, Sprague, Franklin & Ford, Detroit, for Detroit Edison Co., plaintiff-appellant; Harvey A. Fischer, Gerald C. Simon, and George A. Leininger, Jr., Detroit, of counsel.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William D. Dexter and Robert J. Taube, Asst. Attys. Gen., Lansing, for defendants-appellees.
Before the Entire Bench.
BLACK, Justice (for reversal).
Stimulated by no judicial bravos, the present attorney general has--for this latest Edison Case 1--delivered an errant encore of that Aria buffa which, nearly a decade ago, his predecessor chanted before a not very enthusiastic Court. See what we have come to know as the second Edison Case (Detroit Edison Co. v. State, 361 Mich. 290, 105 N.W.2d 227, decided September 16, 1960). The attorney general intoned then, and attorney general Kelley chants now, that the remedy of review before the corporation tax appeal board (provided by P.A.1921, No. 85, P.A.1954, No. 153; C.L.S.1956 and 1961, § 450.309) 2 was and is exclusive; the 1959 official [382 Mich. 502] crescendo having been that 'jurisdiction is lodged exclusively in the corporation tax appeal board pursuant to P.A.1921, No. 85, as amended.' (361 Mich. 290, 296, 297, 105 N.W.2d 227). We thought that song had ended with our wholly negative decision of 1960, but the melody seems to linger on, and on, and on.
We hold again, as in the second Edison Case, that the administrative remedy contended for by the attorney general is Not exclusive. We hold further that Edison has rightfully sought review, pursuant to the administrative procedures act (P.A.1952, No. 197; C.L.S.1961, §§ 24.101 et seq.), of the whole of what in great part is now conceded to be another gross over-assessment of Edison's statutorily payable franchise fees. 3 The judgment of the Court of Appeals is therefore reversed with remand for reinstatement of the circuit court's order denying the treasury department's motion for accelerated judgment.
First: The Question of Exclusive Remedy
When the second Edison Case came to consideration and decision, all of the Justices agreed upon the result reached: that result being reversal upon unanimous determination that the remedy of review provided by section 450.309 is Not exclusive. Our differences then were as to the Preferred method of achieving such a result upon the record made, and each of the preferences was selective without disparagement of the other. Two Justices, this writer and Justice Souris, stood for reversal on ground that the court of claims act provided an alternately available forum for determination of Edison's claim for reimbursement of what the corporation and securities commission had compelled it to pay in order to obtain a certificate of corporate good standing. Three others, Justices Carr, Dethmers and Kelly, grounded their judgment of non-exclusivity on an even broader base; that 'It is significant that the legislature (referring to the act of 1921 as amended) did not specify that the remedies to a corporation, thereby afforded, would be exclusive.' (p. 307, 105 N.W.2d p. 236). Two others, Justices Edwards and Talbot Smith, grounded their votes for the same result on the equally tenable view that 'plaintiff's (Edison's) normal administrative remedy had been barred by the refusal of the commission to issue the redetermination called for by the statute.'
As against the second Edison Case Division 2 erred seriously when the assigned judges agreed (13 Mich.App. at 157, 163 N.W.2d at 666):
In order that this question of allegedly exclusive remedy may be settled with new finality, we formally adopt the following portion of Justice Carr's opinion of the second Edison Case (361 Mich. pp. 306, 307, 105 N.W.2d p. 236):
Second: The Administrative Procedures Act
It will not take long to point out that this act (P.A.1952, No. 197 as amended) by section 1 thereof defines 'agency' as meaning 'any state board, commission, department, bureau or officer, authorized by law to make rules or to adjudicate contested cases, except the workmen's compensation commission, the employment security commission, the department of revenue, the public service commission and those in the legislative and judicial branches.' 4 The section quoted expressly includes all boards, commissions, departments, bureaus and officers except those expressly excepted. Neither the former corporation and securities commission nor the present treasury department and the officers and directors thereof are expressly excepted. Edison therefore was and now is possessed of right to review, under the administrative procedures act, the aforesaid redetermination; a redetermination which, as shown by its complaint below, was made under the first paragraph of said section 450.309. Indeed, the administrative procedures act provides that available remedy which eliminates need for determination of a serious constitutional question, to which we now briefly advert.
The constitutional question, stated baldly from and upon questions put and answers made during oral argument of this case, is whether the paragraph 2 remedy provided by said section 450.309 could, as the attorney general would apply it here, 5 provide Edison with that kind of due process which authorities like In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942; Lookholder v. State Highway Commissioner, 354 Mich. 28, 91 N.W.2d 834; and Glass v. State Highway Commissioner, 370 Mich. 482, 122 N.W.2d 651 minimally require. The significance of these authorities is appropriately summed up in the recent text of 16 Am.Jur.2d, Constitutional Law, § 582, p. 988:
Consider the appeal board which the second paragraph of section 450.309 constitutes. It is composed of 3 members. One is the attorney general. One is the State treasurer. The latter has already decided the issue which the attorney general says must be reviewed by the appeal board; the treasurer having sat as a statutory redeterminer of the assessment now in question. As for the attorney general, granting him the utter purity of a Galahad, we can only say (as in Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 and repeated in In re Murchison, Supra, 349 U.S. at 136, 75 S.Ct. 623) that to perform its high function in the best way 'justice must satisfy the appearance of justice.' The attorney general's appearance as advocate now for review by the appeal board, then his nimble ascendancy to the appeal board for decisional purposes, and then his return to advocacy for the purposes of appeal under the third paragraph of the same section; all this naturally raises the appearance--only that of course--of injustice. No more need be said.
Upon remand the circuit court will proceed toward prompt determination of all meritorious issues raised by plaintiff's complaint and whatever answer thereto the attorney general files. From such determination any party deeming itself or himself aggrieved may appeal directly to ...
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