Public Service Commission v. Hahn Transp., Inc.

• Decision Date: 27 May 1969
• Docket Number: No. 188,188
• Citation: 253 Md. 571,253 A.2d 845
• Parties: , 79 P.U.R.3d 287 PUBLIC SERVICE COMMISSION of Maryland v. HAHN TRANSPORTATION, INC., et al.
• Court: Maryland Court of Appeals

Page 571

253 Md. 571

253 A.2d 845, 79 P.U.R.3d 287

PUBLIC SERVICE COMMISSION of Maryland v. HAHN TRANSPORTATION, INC., et al.

No. 188.

Court of Appeals of Maryland.

May 27, 1969.

Charles R. Richey, Gen. Counsel, Baltimore, for appellant.

Paul R. Kach, Baltimore, for appellees.

Amici curiae brief filed by Maryland State Bar Association, Inc. and The Bar Association of Baltimore City; James G. Perry, Baltimore, on the brief.

Before HAMMOND, C. J., and MARBURY, BARNES, SINGLEY and SMITH, JJ.

HAMMOND, Chief Judge.

In 1966, during the course of a proceeding before the Public Service Commission involving carriers in bulk of flammables, the attorney for one of the carriers objected to petitions and motions filed by a lay employee of another carrier, Hahn Transportation, Inc., arguing that the preparation and filing of these pleadings amounted to the practice of law by one not a member of the bar. This led the Commission to seek a determination of whether it should adopt a rule forbidding laymen to practice or appear before it in a representative capacity in connection with or at a formal hearing. Acting under Code (1965 Repl.Vol.), Art. 78, § 62 ('The Commission shall institute and conduct any proceedings reasonably necessary and proper to the exercise of any of its powers, or the performance of any of its duties'), it held hearings and considered testimony, oral presentations and briefs pro and con filed by various bar associations and various utilities regulated by the Commission, and on November 5, 1967, adopted Rule III-A reading as follows:

'All parties, except individuals appearing in their own behalf, shall be represented by attorneys-at-law, who are duly admitted and enrolled to practice before the Court of Appeals of this State where the Commission is performing a quasi-judicial function as distinguished from a legislative, executive, or a ministerial function. No non-resident attorney shall be allowed to enter his appearance in a case before the Commission except upon motion, which will not ordinarily be granted unless some attorney with a full time office in this state is associated with him or her in the matter.'

Hahn Transportation, Inc. and Germanko nd Halter Co-partners trading as Baltimore Tank Lines, sought review and invalidation of the order adopting the Rule by the Circuit Court of Baltimore City under Code (1965 Repl.Vol.), Art. 78, §§ 90 and 91, claiming to be aggrieved because over a long period of time and in many instances they had filed papers before the Commission and had participated in its proceedings and hearings through employees and 'laymen officers' and, should Rule III-A remain in effect, would in the future not only be put from time to time to added expense but also deprived of the benefit to them of the special skill and knowledge of such employees and officers. They also filed a petition in the Superior Court of Baltimore City asking a declaration that Rule III-A was invalid. The two cases were consolidated and heard by Judge Cullen, who thought that although the Commission has authority under § 64 of Art. 78 to make such reasonable rules and regulations as it deems necessary to carry out the provisions and purposes of Art. 78,

'it would not seem that such a rule as is before the Court at the present time would be in furtherance of the exercise of the power of the Commission in carrying out its function * * *. The enforcement or non-enforcement of the Rule would in no way affect the result of the hearing. The function of the Commission is regulatory and not judicial. It may adopt rules and regulations necessary to carry out its regulatory functions, but it seems that the proceedings are only incidental to the exercise of its powers * * *.

'I reluctantly conclude that the General Assembly has reserved unto itself the right to determine who may practice before the Public Service Commission and has not yet exercised its prerogative in that respect. See Art. 10, § 1.'

He entered an order setting aside Rule III-A in each case. The Commission appealed under the authorization of Code (1965 Repl.Vol.), Art. 78, § 98.

The Commission under Art. 78, § 1, is given jurisdiction of and power over all public service companies and the legislative blessing that:

'The powers of the Commission shall be liberally construed; and the Commission shall have the powers specifically conferred by this article * * * and also all implied and incidental powers necessary and proper to carry out effectually the provisions of this article.'

Section 62 gives the Commission the power to administer oaths, examine witnesses and conduct hearings. Section 64 says: 'The Commission shall have the power to make such reasonable rules and regulations as it deems necessary to carry out the provisions of this article and any other law relating to the Commission.' Section 76 provides that 'All proceedings before the Commission shall be governed by the rules of the Commission, conformably with the provisions of this article. The Commission shall not be bound by the technical rules of evidence or procedure of courts of law or equity.' Nevertheless, § 97 provides that any order of the Commission is to be deemed 'prima facie correct' and must be affirmed on appeal unless unconstitutional, not within statutory authorization, procedurally unlawful, arbitrary or capricious, or otherwise illegal, or 'if the subject of review is an order entered in a contested case after hearing, such order is unsupported by substantial evidence on the record considered as a whole.'

The Commission passed the Rule here challenged on the premises, which it earnestly continues to contend are fully sound and supportable, that (a) a contested case before it in which testimony and other evidence is received, law applied, and a record made which, if an appeal is taken, must be tested under the standards of § 97 of Art. 78, involves the practice of law and, therefore, a layman may not lawfully conduct such a case on behalf of an employer or other client, and (b) that the legislature has given the Commission powers of implementation of its functions and of control over its procedures which enable it properly to recognize and forbid such unlawful practice.

Hahn and Baltimore Tank Lines counter by contending (a) that the Commission exercises a naked statutory delegation of power and no statute exists that authorizes it to adopt Rule III-A; (b) that as is conceded, laymen have been permitted to represent their employers before the Commission since its founding in 1910 and this long-standing practice is conclusive of the lack of power in the Commission to forbid them so to do, particularly since the legislature did not act after Attorney General O'Conor in 23 Op. Att'y Gen. 427 (1938) had advised the State Accident Commission that it could adopt a rule requiring that claimants and employees be represented by lawyers only if practice before the Commission constituted the practice of law and this was debatable and should be resolved by a test suit brought by the Bar Association; (c) since one need not be a lawyer to be a member of the Public Service Commission (Art. 78, § 5), it should be inferred that a layman lawfully can appear in a representative capacity before laymen; (d) it should be inferred that the legislature did not intend the Commission to determine who may practice before it because the Commission is expressly excluded from the Administrative Procedure Act (Code (1965 Repl.Vol.), Art. 41, §§ 244-256), which in § 245 specifically directs each covered agency to adopt rules governing:

'the formal and informal procedures prescribed or authorized by this subtitle. Such rules shall include rules of practice * * * provided, however, that such rules shall not be construed or implemented so as to interfere with the right of any lawyer to practice before any agency, or so as to grant the right to practice law to anyone not authorized so to do,'

(e) because the legislature in Art. 95A, § 16(b) has forbidden anyone not a lawyer to be paid or to accept a fee for appearing before the Employment Security Board and in § 229(d) of Art. 81 specified who may appear in a representative capacity before the Tax Court, it should be inferred that the legislature intends that only it can prescribe what is and what is not the practice of law; (f) the legislature has shown in the Public Service Commission law that laymen may appear before the Commission since in § 77(a) it provides that the Commission shall receive a complaint from 'any person' and in § 79 that '(i)n any contested case begun by complaint, filed by any person * * *, the person complained of shall be entitled to a hearing'; (g) the matter is completely controlled by the decision in Rehm v. Cumberland Coal Company, 169 Md. 365, 181 A. 724, which held that a collection agency was not practicing law in causing to be entered in the People's Court of Baltimore a judgment of $18 for a coal company because the word 'attorney' in then § 626 of the Baltimore City Charter providing that no justice of the peace 'shall issue a summons except on application * * * by the plaintiff or his attorney * * *,' had been used in similar statutes for 114 years as meaning attorney in fact as well as attorney at law, and because the office of justice of the peace is entirely disassociated from the idea of a 'court' in the common acceptation of that term, although the office is judicial.

When the question before us is first asked the true answer may not seem easy to give, but deliberate consideration makes it clearly to be perceived. Rule III-A in terms recognizes that the Commission functions legislatively, executively and ministerially, as well as quasi-judicially. It declares the conceded right of an individual to appear in his own behalf no matter in which capacity the Commission is functioning and, by necessary implication, the Rule permits a layman to appear for another in Commission matters that are in...