Giaras v. Mich. Pub. Serv. Comm'n

• Decision Date: 06 April 1942
• Docket Number: No. 34.,34.
• Parties: GIARAS v. MICHIGAN PUBLIC SERVICE COMMISSION et al.
• Court: Michigan Supreme Court

301 Mich. 262

3 N.W.2d 268

GIARAS

v.MICHIGAN PUBLIC SERVICE COMMISSION et al.

No. 34.

Supreme Court of Michigan.

April 6, 1942.

Suit by John Giaras, doing business as Lake Shore Motor Transit Lines, against the Michigan Public Service Commission and other to set aside an order of the commission denying plaintiff the right to operate common carrier motor vehicle freight service between certain cities. From a decree dismissing the bill of complaint and affirming the order, plaintiff appeals.

Appeal dismissed.

Appeal from Circuit Court, Ingham County; Leland W. Carr, judge.

Before the Entire Bench, except WIEST, J.

Charles W. Gore, of Benton Harbor, for appellant.

H. J. Rushton, Atty. Gen., Edmund E. Shepherd, Asst. Atty. Gen., and James W. Williams, Asst. Atty. Gen., for appellee Michigan Public Service Commission.

K. F. Clardy, of Lansing, for intervening defendant and appellee.

Miller, Bevan, Horwitz & Des Roches, of Detroit, for intervening defendant and appellee Western Michigan Transp. Co.SHARPE, Justice.

This is an appeal from a decree of the circuit court of Ingham county, in chancery, which dismissed the plaintiff's bill of complaint and affirmed an order of the Michigan public service commission rendered June 14, 1940, denying plaintiff, doing business as the Lake Shore Motor Transit Lines, the right to operate common carrier motor vehicle freight service between St. Joseph, Benton Harbor and Kalamazoo, Michigan.

Plaintiff, invoking the jurisdiction of the chancery court granted by Act No. 254, art. 5, § 20, as amended by Act No. 261, Pub.Acts 1939, Comp. Laws Supp. 1940, § 11352-55, Stat. Ann.Cum.Supp. 1941, § 22.585, filed a bill of complaint in the circuit court of Ingham county, in chancery, to set aside the order of the commission, and order the commission to issue to plaintiff a common carrier intrastate permit in accordance with his application, on the grounds that the order of the commission was illegal and unreasonable.

The bill of complaint alleges that plaintiff has been engaged in the business of a common carrier of freight by trucking between the cities of St. Joseph, Benton Harbor and Kalamazoo since 1917; that from 1917 to 1926, he operated independently of any other business; that during the year of 1926, plaintiff and the Goodrich Transit Company, a steamboat corporation of Benton Harbor, entered into an arrangement whereby plaintiff operated his trucks in carrying freight between Benton Harbor and Kalamazoo; that from 1926 to and including the year 1932, plaintiff, in addition to hauling freight for the Goodrich Transit Company, carried freight generally for the public between these points as a common carrier; that during this latter period he used his own trucks and equipment, and paid all taxes necessary to such operation, although the permit to carry on such business was in the name of the Goodrich Transit Company; that in 1932 the Goodrich Transit Company went into bankruptcy; that plaintiff did not know the permits were in the name of the Goodrich Transit Company, but was advised by the commission that it would be necessary for him to make an application for a permit; that plaintiff filed such an application and later another application which was denied by the commission on September 14, 1934; that on May 23, 1938, plaintiff filed an original application with the commission for a permit to operate over a specified route; that thereafter the commission recommended that plaintiff be granted a limited common carrier certificate; that plaintiff refused to accept such a certificate and continued his operations until on or about April 12, 1939, when he filed a petition to re-open the cause; that on June 14, 1940, the commission entered an order denying plaintiff's application; and that on September 23, 1938, at the time of a hearing before the commission, the Interstate Motor Freight System intervened and objected to the granting of the application to plaintiff and on December 30, 1938, while plaintiff's application was pending, the commission granted the interstate Motor Freight System an intrastate permit covering the same territory and routes as applied for by plaintiff.

It appears that at the hearing before the commission on May 14, 1940, the commission limited plaintiff to a showing of convenience and necessity as of the date of his last application; that it did not take into consideration the plaintiff's continuous operation as a common carrier between the points involved since about 1916; and that it denied plaintiff the right to show that he was the equitable or actual owner of the Goodrich Transfer Company permit.

Upon appeal to the circuit court of Ingham county, testimony on material points was taken in addition to the proofs offered before the commission. A transcript of this evidence was made and returned to the commission as provided in Act No. 261, art. 5, § 20, Pub.Acts, 1939, Comp. Laws Supp. 1940, § 11352-55, Stat. Ann.Cum.Supp. 1941, § 22.585. The commission declined to alter its former order and the circuit court affirmed the order of the commission.

Plaintiff appeals and urges that the action of the commission in denying plaintiff a permit was ‘unreasonable’; that the commission discriminated against plaintiff in awarding a permit to the Interstate Motor Freight System while plaintiff's application was still pending before the commission; that plaintiff was the equitable owner of the permit issued Goodrich Transit Company and as such owner had a vested right to the permit issued to Goodrich Transit Company; and that the commission was in error in its refusal to consider testimony in support of a showing of convenience and necessity as of the time of the original application in 1932 and subsequent years.

The trial court in its opinion stated: ‘It is evident that the Commission considered the conflicting claims and testimony of the various parties to the cause, finally reaching the conclusion that plaintiff had not made such a showing as justified favorable action on his application. From a consideration of the entire record I am brought to the conclusion that it cannot be affirmatively said that the determination so reached is not supported by the proofs. The burden of establishing the unreasonable and unlawful character of the order appealed from rests on the plaintiff; and without discussing the details of the testimony I am brought to the conclusion that such burden has not been sustained. On the contrary, the evidence justifies the conclusion that the communities in question are adequately served by carriers other than the plaintiff; and plaintiff's theory that he acquired vested rights by operating under the permit issued to the Goodrich Transit Company, and subsequently under the temporary injunction of the Berrien Circuit Court, cannot be unheld.'

The statute applicable to the...