Michigan Gas Utilities Co. v. Michigan Public Service Commission, Docket No. 9705

• Decision Date: 27 October 1970
• Docket Number: No. 2,Docket No. 9705,2
• Parties: MICHIGAN GAS UTILITIES COMPANY, a Michigan corporation, Plaintiff-Appellant, v. MICHIGAN PUBLIC SERVICE COMMISSION, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 619

183 N.W.2d 619

27 Mich.App. 411

MICHIGAN GAS UTILITIES COMPANY, a Michigan corporation, Plaintiff-Appellant, v. MICHIGAN PUBLIC SERVICE COMMISSION, Defendant-Appellee.

Docket No. 9705.

Court of Appeals of Michigan, Division No. 2.

Oct. 27, 1970.

Released for Publication Feb. 19, 1971.

William D. Parsley, Snyder, Ewert, Ederer & Parsley, Lansing, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Walter V. Kron, David P. Van Note, Asst. Attys. Gen., for defendant-appellee.

Before QUINN, P.J., and McGREGOR and BRONSON, JJ.

PER CURIAM.

Plaintiff appeals from an order of the Ingham County Circuit Court in which the court granted defendant's motion for accelerated judgment and dismissed the complaint. Defendant moves to affirm.

On November 12, 1969, the defendant Michigan Public Service Commission issued an order prescribing rates to be charged by plaintiff company. That order contained, Inter alia, the following provision:

'It is further ordered that in the event the federal income tax surcharge expires or is reduced, Michigan Gas Utilities Company shall promptly file rate schedules reducing its rates by the amount of the tax reduction. Such reduced rates shall be effective within thirty days of the effective date of the tax reduction.'

Plaintiff did not appeal from that order within 30 days as required by M.C.L.A. § 462.26(a) (Stat.Ann.1970 Rev. § 22.45) which governs appeals from orders of the Michigan Public Service Commission.

'Sec. 26(a) Grounds for action, procedure. Any common carrier or other party in interest, being dissatisfied with any order of the commission fixing any rate or rates, fares, charges, classifications, joint rate or rates, or any order fixing any regulations, practices or services, may within 30 days from the issuance of such order and notice thereof commence an action in the circuit court in chancery for the county of Ingham, against the commission as defendant to vacate and set aside any such order * * *.'

On January 23, 1970, after expiration of the statutory appeal period, plaintiff filed an original action in which it sough to enjoin the enforcement of the portion of the commission order quoted above. The injunction if granted would have had the effect of vacating the portion of the order complained of, the same relief provided by Sec. 26(a). Defendant filed a motion for accelerated judgment and the trial court granted the motion and dismissed the complaint on the ground that the court was without jurisdiction in the matter and plaintiff was barred from appeal because it had not commenced an action within the 30 day period prescribed by Sec. 26(a).

Plaintiff claims that, notwithstanding the provisions of Sec. 26(a), Supra, the court has general equity jurisdiction to grant the injunction as requested even though the relief sought is, in effect, identical to that provided by Sec. 26(a). Plaintiff cites a number of cases. However, those cases fail to support this position.

Plaintiff's claim is without merit. In Michigan Bell Telephone Company v. Ingham Circuit Judge (1949), 325 Mich. 228, 233, 234, 38 N.W.2d 382, 384, the Supreme Court said:

'In this type of cases the procedure before the commission and thereafter in the circuit court is purely statutory. * * * It is too plain even to justify comment that this procedure is designed to accomplish speedy final determination of...