Lafayette Transfer & Storage Co. v. Mich. Pub. Utilities Comm'n

• Decision Date: 02 February 1939
• Docket Number: No. 32,October Term, 1938.,32
• Citation: 283 N.W. 659,287 Mich. 488
• Court: Michigan Supreme Court
• Parties: LAFAYETTE TRANSFER & STORAGE CO. v. MICHIGAN PUBLIC UTILITIES COMMISSION (PRIEBE, Intervener).

287 Mich. 488

283 N.W. 659

LAFAYETTE TRANSFER & STORAGE CO.

v.MICHIGAN PUBLIC UTILITIES COMMISSION (PRIEBE, Intervener).

No. 32, October Term, 1938.

Supreme Court of Michigan.

Feb. 2, 1939.

Action by the Lafayette Transfer & Storage Company against the Michigan Public Utilities Commission to review an order of the commission granting a permit to Harry Priebe, doing business as Priebe Brothers, to carry freight as a contract carrier, wherein Harry Priebe, doing business as Priebe Brothers, intervened. From a decree reversing the order, defendant and intervener appeal.

Reversed, and bill of complaint dismissed.Appeal from Circuit Court, Ingham County, in Chancery; Leland W. carr, judge.

Argued before the Entire Bench, except BUTZEL, C. J.

Raymond W. Starr, Atty. Gen., and Edmund E. Shepherd and H. Attix Kinch, Asst. Attys. Gen., for appellant Michigan Public Utilities Commission.

Thomas N. Robinson and Charles W. Gore, both of Benton Harbor, for intervener.

K. F. Clardy, of Lansing, for appellee.

POTTER, Justice.

Harry Priebe, doing business as Priebe Brothers, intervening defendant and appellant, applied to the Michigan public utilities commission for a permit to carry freight as a contract carrier. His application was opposed by plaintiff and appellee. A permit was granted to Priebe Brothers, whereupon plaintiff filed a bill of complaint in the circuit court for Ingham county to review the order of the Michigan public utilities commission granting such permit. Testimony was taken, the case certified back to the Michigan public utilities commission which adhered to its original ruling, whereupon a decree was entered by the circuit court in chancery reversing the order of the Michigan public utilities commission. Defendants appeal.

The Michigan public utilities commission, by the attorney general, by way of answer to plaintiff's bill of complaint in the circuit court for Ingham county in chancery, alleged that sections 11014 and 11042, 2 Comp.Laws 1929, in pursuance of which plaintiff's bill of complaint was filed, did not confer jurisdiction upon the circuit court for the county of Ingham in chancery to review orders of the Michigan public utilities commission pertaining to the granting of permits to motor vehicle carriers for hire.

At the time Act No. 145, Pub. Acts 1915, was passed and at the time Act No. 419, Pub. Acts 1919, was passed, the Michigan public utilities commission had no jurisdictionat all over motor vehicle carriers for hire upon the public highways of the State.

Act No. 209, Pub. Acts 1923, first provided for the regulation of such common carriers. By Act No. 312, Pub. Acts 1931, the 1923 act was expressly repealed. By Act No. 254, Pub. Acts 1933, Act No. 312, Pub. Acts 1931, and Act No. 209, Pub. Acts 1923, were expressly repealed. Act No. 254, Pub. Acts 1933, is the only act now in force governing the issuance of permits to motor vehicle carriers for hire. This statute was a consolidation of previous acts, it covered the entire field, it was an original and independent act. It conferred new powers upon the Michigan public utilities commission, defined those powers, and provided for new regulations for motor vehicle carriers for hire upon the public highways, whether such carriers were public or private carriers.

Section 20, article 5, Act No. 254, Pub.Acts 1933, provides: ‘The orders of the commission issued under the provisions of this act shall be subject to review by the supreme court of the state both as to the law and the facts; and the statutes, rules and practice on appeals to the supreme court from circuit courts in equity cases shall apply to and govern proceedings for such review. The supreme court is given jurisdiction to hear and determine such matters made reviewable hereunder.’

Where a statute gives new rights and prescribes new remedies, such remedies must be strictly pursued; and a party seeking a remedy under the act is confined to the remedy conferred thereby and to that only.

‘Where a statute creates a new right or imposes a new duty or liability, unknown to the common law, and at the same time gives a remedy for its enforcement, the remedy so prescribed is exclusive.’ 2 Lewis' Sutherland's Statutory Construction (2d Ed.), p. 1310.

‘It is a well established principle of law, that where a statute gives a new right and prescribes a particular remedy, such remedy must be strictly pursued; and a party seeking the remedy is confined to that remedy, and that only.’ Thurston v. Prentiss, 1 Mich. 193.

Where a statute provides for an appeal or a writ of error to a specific court, it must be regarded as a repeal of any previous statute providing for a writ of error to another court. Brown v. United States, 171 U.S. 631, 19 S.Ct. 56, 43 L.Ed. 312;Laurel Oil Co. v. Morrison, 212 U.S. 291, 29 S.Ct. 394, 53 L.Ed. 517;Ansley v. Ainsworth, 180 U.S. 253, 21 S.Ct. 364, 45 L.Ed. 517;Binyon v. United States, 195 U.S. 623, 25 S.Ct. 786, 49 L.Ed. 349;Sass & Crawford v. Thomas, 214 U.S. 489, 29 S.Ct. 695, 53 L.Ed. 1057.

As said in Jackson v. Cravens, 5 Cir., 238 F. 117, 119: ‘Where an earlier statute provides a remedy covering all cases, and a subsequent statute creates a specific remedy for a particular case, the latter is to be construed to be exclusive, unless the purpose of the Legislature or the convenience of the public demand a different rule of construction, and that this is true, though the language of the subsequent act is permissive, rather than mandatory.’

Where a statute gives a new power and at the same time provides the means of executing it, those who claim the power can execute it in no other way. Andover & M. Turnpike Corporation v. Gould, 6 Mass. 40, 4 Am.Dec. 80.

...