Mich. Pub. Utilities Comm'n v. Manufacturer's Freight Forwarding Co. (In re Manufacturer's Freight Forwarding Co.)

• Decision Date: 03 June 1940
• Docket Number: No. 135.,135.
• Parties: In re MANUFACTURER'S FREIGHT FORWARDING CO. MICHIGAN PUBLIC UTILITIES COMMISSION v. MANUFACTURER'S FREIGHT FORWARDING CO.
• Court: Michigan Supreme Court

294 Mich. 57

292 N.W. 678

In re MANUFACTURER'S FREIGHT FORWARDING CO.

MICHIGAN PUBLIC UTILITIES COMMISSION

v.MANUFACTURER'S FREIGHT FORWARDING CO.

No. 135.

Supreme Court of Michigan.

June 3, 1940.

Appeal from Public Utilities Commission.

In the matter of the application of the Manufacturer's Freight Forwarding Company for a permit to operate a motor vehicle freight service as a contract motor carrier between St. Joseph and/or Benton Harbor, Mich., and various points in Michigan. From an order of the Michigan Public Utilities Commission denying the permit, applicant appeals.

Appeal dismissed, and stay of proceedings discharged.

Argued before the Entire Bench.

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

Patrick H. O'Brien, Atty. Gen., Perry A. Maynard, Asst. Atty. Gen., and Richard Chapman, Sp. Asst. Atty. Gen., for appellee.

POTTER, Justice.

The Manufacturer's Freight Forwarding Company appeals from an order of the Michigan public utilities commission made July 2, 1934, finding that the proposed operation of plaintiff as a contract carrier would impair the efficient public service of certian authorized common and contract motor carriers now adequately serving the same territory.

Plaintiff procured a license as a contract carrier from the Michigan public utilities commission. Subsequently it filed a supplemental contract carrier application and this was brought on for hearing before the commission. The commission denied the supplemental contract carrier application, holding that the granting of such private contract carrier application, considered in conjunction with the applicant's present operation, would in fact make it a common carrier, and denying it the right to such supplemental contract carrier permit, but without prejudice to its right to apply for a common carrier permit.

Later, May 29, 1934, another supplemental contract carrier permit was applied for. This was brought on for hearing. Plaintiff testified in relation to the business to be carried on by it in the handling of freight, and in defense Paul G. Scholten of the Western Michigan Transportation Company operating out of Benton Harbor as a common carrier, Ray Williams who was associated with the Cloverleaf Trucking Company serving the Benton Harbor and St. Joseph territory, and Joseph Mammina who was general manager of the Tri-State Motor Express handling freight out of that territory, were sworn. The commission denied the permit.

The matter came here on application for leave to appeal filed July 13, 1934, and it was ordered that the appeal be allowed, that all proceedings be stayed until the further order of this court, provided ‘that within thirty days from this day, appellant print and file his record on appeal, together with his brief and that he consent that this appeal be submitted on briefs under Rule 71, at the option of the attorney for the commission.’ The attorney for the commission did not exercise his option to have the case heard. The brief filed by the then attorney general was not presented to this court until January 2, 1935, shortly after he retired from office. On the general theory of letting sleeping dogs lie, we assume, the attorney for appellant, having obtained a stay of proceedings, did not bring the matter on for hearing when it had been ordered it should be brought on for hearing at the option of the attorney for the commission.

The proceedings for appeal in this case are sought to be upheld under Acts 212 and 312, Pub.Acts 1931, and Act No. 254, Pub.Acts 1933.

Act No. 212, § 13, Pub.Acts 1931, provided: ‘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.’

Act No. 312, § 8, Pub.Acts 1931, and Act No. 254, art. 5 § 20, Pub.Acts 1933, contain the same language.

By the Constitution of this State (1908), art. 4, § 1: ‘The powers of government are divided into three departments: The legislative, executive and judicial.’

The Constitution, art. 4, § 2, also provides: ‘No person belonging to one department shall exercise the powers properly belonging to another, except in the cases expressly provided in this constitution.’

‘There is a distinction between legislative and judicial acts. The Legislature makes the law; courts apply it. To enact laws is an exercise of legislative power; to interpret them is an exercise of judicial power. To declare what the law shall be is legislative; to declare what it is or has been is judicial. The legislative power prescribes rules of action. The judicial power determines whether, in a particular case, such rules of action have been transgressed. The Legislature prescribes rules for the future. The judiciary ascertains existing rights.’ In re Application of Consolidated Freight Co., 265 Mich. 340, 251 N.W. 431, 433.

As said in Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 69, 53 L.Ed. 150: ‘A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. * * * Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.’

‘Our government is one whose powers have been carefully apportioned between three distinct departments, which emanate alike from the people, have their powers alike limited and defined by the constitution, are of equal dignity, and within their respective spheres of action equally independent. One makes the laws, another applies the laws in contested cases, while the third must see that the laws are executed. This division is accepted as a necessity in all free governments, and the very apportionment of power to one department is understood to be a prohibition of its exercise by either of the others. The executive is forbidden to exercise judicial power by the same implication which forbids the courts to take upon themselves his duties.’ People ex rel. Sutherland v. Governor, 29 Mich. 320, 18 Am.Rep. 89.

The law provided for the granting of a certificate of public convenience and necessity, Act No. 212, § 6, Pub.Acts 1931; and that no public carrier should charge, demand, or collect or receive a greater or less or different remuneration for the transportation of property, or for any service in connection therewith, than the rates, fares and charges which had been legally established and filed with the commission. There were prohibitions against the refunding of charges. Act No. 312, § 4, Pub.Acts 1931. There were provisions in the statute of 1933, Act No. 254, art. 2, §§ 6, 7, providing for the publication and filing of rates, that the rates, fares and charges made by any common carrier should be just and reasonable and not discriminatory, prejudicial or preferential; and, art. 2, § 8, there was a prohibition against rebates. There was provision in the statute, Act No. 254, art. 3, Pub.Acts 1933, vesting the commission with power and authority to supervise the regulation of contract motor carriers of property or passengers, to prescribe minimum rates, fares and charges to be collected by such contract carriers, to require the filing of annual and other reports and other data by such contract motor carriers. There were other provisions therein in relation to operation.

The determination of what are just and reasonable rates for a common carrier is legislative in character. Mr. Chief Justice GRANT, in Michigan Telephone Co. v. City of St. Joseph, 121 Mich. 502, 80 N.W. 383, 385,47 L.R.A. 87, 80 Am.St.Rep. 520, said: ‘This is a legislative or administrative function, and not a judicial one.’

Mr. Justice STEERE, in City of Traverse City v. Michigan Railroad Comm., 202 Mich. 575, 168 N.W. 481, 483, said: ‘That the state may regulate charges of common carriers and the power to fix the rates which they may charge the public for their services is a legislative and not a judicial function is now elemental.’

This language was approved in City of Detroit v. Michigan Railroad Comm., 209 Mich. 395, 177 N.W. 306.

Justice STEERE held that the judicial function or power of the courts was limited to determining whether any particular rate fixed by the legislature or its duly authorized agency is reasonable or otherwise.

‘* * * when the legislature, or the body acting under its authority, establishes the rate to be thereafter charged by the carrier, it is the duty of the courts to enforce the rule of law so made unless the constitutional limits of the rate-making power have been transgressed.’ Louisville & Nashville R. Co. v. Garrett, 231 U.S. 298, 34 S.Ct. 48, 54, 58 L.Ed. 229.

‘The rate-making power necessarily implies a range of legislative discretion; and, so long as the legislative action is within its proper sphere, the courts are not entitled to interpose and upon their own investigation of traffic conditions and transportation problems to substitute their judgment with respect to the reasonableness of rates for that of the legislature or of the railroad commission exercising its delegated power.’ Louisville & Nashville R. Co. v. Garrett, supra.

‘* * * the courts in reviewing the action of the Commission have no authority to substitute their judgment as to what is reasonable in a given case for that of the Commission, but are limited to determining whether the action complained of was capricious or arbitrary and for this reason unlawful.’ People of State of New York ex rel. New York & Queens Gas Co. v. McCall, 245 U.S. 345, 38 S.Ct. 122, 123, 62 L.Ed. 337.

‘* * * administrative orders operating in futuro, are not to be disturbed by...