Sullivan v. Michigan Public Service Commission, Docket No. 78-2398
| Decision Date | 05 November 1979 |
| Docket Number | Docket No. 78-2398 |
| Parties | R. J. SULLIVAN, d/b/a Sullivan and Company, Plaintiff-Appellant, v. MICHIGAN PUBLIC SERVICE COMMISSION, Defendant-Appellee, and Michigan Consolidated Gas Company, Interested Party-Appellee. 93 Mich.App. 391, 287 N.W.2d 188 |
| Court | Court of Appeal of Michigan — District of US |
[93 MICHAPP 392] J. Andrew Domagalski, Richland, for plaintiff-appellant.
Arthur E. D'Hondt, Asst. Atty. Gen., Lansing, for Michigan Public Service Commission.
Alex H. Terzian, III, Detroit, for Michigan Cons. Gas Co.
Before ALLEN, P. J., and T. M. BURNS and HOLBROOK, * JJ.
This is an appeal as of right by Sullivan and Company (Sullivan) from an accelerated judgment, entered by the Ingham County Circuit Court, which dismissed its appeal under [93 MICHAPP 393] the Administrative Procedures Act of 1969, M.C.L. § 24.201 Et seq.; M.S.A. § 3.560(101) Et seq., from an order of the Michigan Public Service Commission.
Sullivan is an oil and gas producer operating in Michigan and in other states. It produces gas from two of eight wells in the Big Hand Field located in Columbia Township, St. Clair County, Michigan. Michigan Consolidated Gas Co. operates four of the wells and is the sole purchaser of gas from Sullivan since 1971, under a three-year contract. On March 4, 1974, Michigan Consolidated entered into a one-year contract to purchase gas from Sullivan at a price of 56 cents per Mcf. The Commission approved that contract by order entered January 6, 1975. In the meantime, the parties were unable to agree on a new contract, Sullivan demanding a higher price per Mcf and the utility demanding substantial additional consideration. Although the parties did not agree on a new contract, Michigan Consolidated continues to purchase Sullivan's gas at the former price of 56 cents per Mcf.
On November 24, 1975, Sullivan filed a complaint with the Commission, alleging that Michigan Consolidated was discriminating against it in the purchase price of gas, allegedly in violation of § 4 of 1929 P.A. 9, an act controlling and regulating gas pipelines, M.C.L. § 483.101 Et seq.; M.S.A. § 22.1311 Et seq. Sullivan claimed that the utility was deliberately pursuing a course of conduct to maintain the price of gas purchased from it at a depressed level. The Commission heard Sullivan's complaint and dismissed it by order entered March 28, 1977. The Commission held that Michigan Consolidated did not discriminate against Sullivan "in price or amount for like grades of natural gas as between producers or persons or in favor of its own production"[93 MICHAPP 394] because, Inter alia, "all other producers in the Big Hand Field are presently paid the same price for natural gas as is Complainant".
Fifty-eight days later, Sullivan sought judicial review of that order in Ingham County Circuit Court by petition for review under Chapter 6 of the Administrative Procedures Act of 1969. The Commission and Michigan Consolidated responded with motions for accelerated judgment on the grounds that the circuit court lacked jurisdiction over the appeal because the Commission's order was appealable by statutory appeal filed within 30 days and was not subject to review under the APA. After briefing and oral arguments on the question, the circuit court agreed by opinion entered January 13, 1978, and accelerated judgment was entered on June 2, 1978.
On appeal, Sullivan contends that its appeal under the APA, taken within the 60-day period allowed by § 104, was timely and proper because the Commission order appealed was not subject to (in the words of APA § 102) "any applicable special statutory review proceeding in any court specified by statute * * * ". M.C.L. § 24.302; M.S.A. § 3.560(202). Appellees contend that the order is reviewable only under § 26 of the Railroad Commission Act (1909 P.A. 300) and only within the 30-day period specified in § 26. M.C.L. § 462.26; M.S.A. § 22.45. Appellees argue that Sullivan is directed to the § 26 remedy not only by the Railroad Commission Act itself, but also by § 4 of the Public Service Commission Act (1939 P.A. 3), M.C.L. § 460.4; M.S.A. § 22.13(4), and by § 10 of the gas pipelines act under which Sullivan brought its discrimination complaint against the utility. M.C.L. § 483.110; M.S.A. § 22.1320.
Section 4 of the Public Service Commission Act provides in pertinent part:
[93 MICHAPP 395] "Any order or decree of the public service commission shall be subject to review in the manner now provided by law for reviewing orders and decrees of the Michigan railroad commission or the Michigan public utilities commission." M.C.L. § 460.4; M.S.A. § 22.13(4).
Orders of the former Michigan Railroad Commission and Michigan Public Utilities Commission were reviewable under § 26 of the Railroad Commission Act. See M.C.L. § 460.53; M.S.A. § 22.3; M.C.L. § 462.26; M.S.A. § 22.45. It follows that orders of the current agency, the Public Service Commission, are appealable under § 26. Accordingly, we hold that § 26 is a "special statutory review proceeding" within the meaning of APA § 102. Sullivan's appeal was required to be filed under § 26 and within the 30-day period specified in that section. 1 Accord, Consumers Power Co. v. Public Service Comm., 88 Mich.App. 633, 278 N.W.2d 702 (1979); Michigan Gas Utilities Co. v. Public Service Comm., 27 Mich.App. 411, 183 N.W.2d 619 (1970); Michigan Towing Ass'n, Inc. v. Public Service Comm., 15 Mich.App. 525, 166 N.W.2d 608 (1969).
[93 MICHAPP 396] Sullivan argues that § 26 is inapplicable because the Commission's order does not fix a "rate", as the word is defined in cases, because this controversy does not affect the public at large and because it is not significant enough to warrant the precedence § 26 gives to Commission appeals in circuit court. We reject the arguments.
It is true that the word "rate" generally refers to the price fixed for some commodity or service of general need or utility which is furnished to the public at large. Detroit v. Public Utilities Comm., 288 Mich. 267, 284, 286 N.W. 368 (1939); Lenawee County Gas & Electric Co. v. City of Adrian, 209 Mich. 52, 58, 176 N.W. 590 (1920). However, "rate" means simply "price". In the context of § 26, "rate" can refer to the price of a commodity or service regulated by the Public Service Commission whether set "administratively" or "legislatively" (see Detroit v. Public Utilities Comm., supra ) and whether directly affecting the public at large or not.
It may be true, as Sullivan contends, that this controversy does not require the priority hearing afforded by § 26. But it does not follow that the controversy Therefore is not within § 26. Both § 4 of the Public Service Commission Act and § 26 of the Railroad Commission Act use the phrase "any order" when referring Commission appeals to the Ingham County Circuit Court. There is no legislative intention apparent in the acts that only orders of public significance or public importance are included in the appellate remedy provided by § 26.
Moreover, it is clear from the entire statutory scheme of Public Service Commission matters that the Legislature intended nearly all Commission orders to be appealed under § 26. In addition to § 4 of the Public Service Commission Act and § 26 of [93 MICHAPP 397] the Railroad Commission Act, the following statutes incorporate or duplicate the appellate remedy of § 26: § 5 of the Water Carriers Act, M.C.L. § 460.201 Et seq.; M.S.A. § 22.91 Et seq.; § 6 of the act regarding certificates of convenience and necessity for new gas or electric projects, M.C.L. § 460.501 Et seq.; M.S.A. § 22.141 Et seq.; § 7 of the act regulating transmission of electricity through highways, M.C.L. § 460.551 Et seq.; M.S.A. § 22.151 Et seq.; art. v, § 20 of the Motor Carrier Act, M.C.L. § 475.1 Et seq.; M.S.A. § 22.531 Et seq.; § 3 of the act governing abandonment of tracks, M.C.L. § 469.241 Et seq.; M.S.A. § 22.611 Et seq.; § 4 of the act regulating passenger rates for electric interurban railroads, M.C.L. § 468.31 Et seq.; M.S.A. § 22.981 Et seq.; § 10 of the act regulating gas lines, M.C.L. § 483.101 Et seq.; M.S.A. § 22.1311 Et seq.; § 14 of the act regulating telephone companies as common carriers, M.C.L. § 484.101 Et seq.; M.S.A. § 22.1441 Et seq., and § 20 of the act regulating water companies, M.C.L. § 486.551 Et seq.; M.S.A. § 22.1730(1) Et seq.
We do agree with Sullivan that § 10 of 1929 P.A. 9, under which it brought its...
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