Mich. Bell Tel. Co. v. Salmon, Motion No. 8.
| Decision Date | 29 June 1949 |
| Docket Number | Motion No. 8. |
| Citation | 38 N.W.2d 382,325 Mich. 228 |
| Parties | MICHIGAN BELL TEL. CO. v. SALMON. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Petition for mandamus by Michigan Bell Telephone Company to compel Marvin J. Salmon, Ingham County Circuit Judge, to vacate an order denying plaintiff's motion to reopen and take further testimony in a proceeding wherein the Michigan Public Service Commission had made an order fixing telephone rates.
Denied.
Before the Entire Bench.
Thomas G. Long, Detroit, Karl F. Oehler, James Morgan Smith, Jack H. Shuler, Detroit, for plaintiff Michigan Bell Tel. Co.
Stephen J. Roth, Attorney General, Edmund E. Shepherd, Solicitor General, Lansing, Daniel J. O'Hara, G. Douglas Clapperton, Assistants Attorney General, for defendant.
Plaintiff herein seeks mandamus in this Court to compel Ingham county circuit judge, Marvin J. Salmon, to vacate his order of November 3, 1948, whereby plaintiff's motions to reopen and take further testimony were denied in a proceedings wherein the Michigan public service commission had made a rate fixing order on December 13, 1945. We will herein refer to plaintiff, Michigan Bell Telephone company, as the company, and to the Michigan public service commission as the commission. To aid in presenting the factual background we note in chronological order the following phases of this proceedings.
October 3, 1944-Rate proceedings instituted.
December 13, 1945-The commission made an order reducing and fixing rates to be charged for certain telephone service, effective December 31, 1945.
January 11, 1946-The company filed a bill of complaint in this proceedings in Ingham county circuit court, alleging in substance that the commission's order of December 13 was confiscatory.
February 1, 1946-The company obtained a temporary injunction against enforcement of the rates fixed by the December 13 order, but conditioned that the amount collected by the telephone company in excess of the December 13 rate order should be kept in reserve by the company to abide final decision. By October, 1948, this amount had accrued to $10,500,000.
July 9, 1946-Issue having been framed and hearing completed, the Ingham county circuit judge, Paul G. Eger, ordered that the amplified record completed before him be transmitted to the commission, as provided by statute. 2 Comp.Laws 1929, § 11715, Stat.Ann. § 22.1456.
February 14, 1947-The commission having completed its reconsideration in the light of the amplified record, filed with the circuit court its report and determination whereby the telephone company was relieved to the extent of approximately 25% of the reduction in its service charges as provided in the December 13, 1945, order. The result of the foregoing brought the case again before the circuit court, but the issue was the validity of the commission's order as modified, instead of its order of December 13, 1945.
April 1, 1947-The company filed in the circuit court proceedings a motion to reopen the case and take further testimony. This motion was disposed of by a stipulation in open court that, as sought in the motion, there should be considered in evidence monthly reports of the company to the commission from June to December, 1946, inclusive, and also the affidavit of Ferry B. Allen which was filed in support of the motion.
July 7, 1947-The company again made a motion to reopen the proofs, but before hearing this motion Judge Eger died, July 19, 1947. Months passed with no action by either party.
May 5, 1948-The company made a so-called supplementary motion to reopen the proofs, the case having now been assigned to circuit judge Salmon.
November 3, 1948-After prior hearing (incident to which the city of Detroit as an intervenor filed a brief in opposition to this latter motion) the circuit judge denied plaintiff's motions of July 7, 1947, and May 5, 1948, to reopen the case for further testimony.
December 31, 1948-The company filed in this Court a petition for mandamus to compel Judge Salmon to vacate his order denying the company's motions to reopen the proofs. Plaintiff's petition for mandamus was opposed by the circuit judge, represented by the attorney general. Thus the issue here presented is this: Should this Court grant mandamus as prayed?
In addition to the foregoing there should be noted the following facts and circumstances incident to the development of this prolonged litigation. Subsequently to February 14, 1947, when the commission's modified rate order was transmitted to the circuit court and subsequently to April 1, 1947, when the company filed its first petition to reopen the proofs but before the hearing on April 24 of this motion, which matter was disposed of by stipulation, the company experienced a strike of its employees starting in April, 1947, and settled May 20, following. In support of the company's July 7, 1947, motion to reopen the proofs a showing was made that its cost of operation by reason of increase of wages resulting from the strike would be approximately $5,500,000 per year. But comparatively soon after the settlement of the strike the company, on August 27, 1947, filed with the commission a petition for approval of increased rates. This matter was heard by the commission and on October 14, 1948, the commission by its order granted the company an increase of rates ‘designed to increase its revenues (probably annually) approximately $8,217,000 * * *.’
It is somewhat important to note that on April 24, 1947, at the hearing of the company's first motion filed April 1, 1947, to reopen proofs, in stipulation to supplementing the record as hereinbefore noted, attorney Williams, representing the defendant commission, stated: ‘It is my understanding that if the record is so expanded, it will not be necessary for it to be returned to the Commission, but that we will then be in a position to go forward with this court's decision upon the merits of this controversy.’
In response to the above the attorney representing the company stated to the court: ‘I am in agreement with Mr. Williams' statement.’ From the foregoing it appears that as of April 24, 1947, by agreement of both litigants this matter, except filing briefs, was fully submitted to the circuit court. The two motions to reopen proofs denied by Judge Salmon were made subsequently; and decision in this mandamus proceedings...
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