Adams, J.
(for affirmance).
1. The Facts and Proceedings.
In November 1964, the Chesapeake & Ohio Railway Company announced by public notification that effective January 3, 1965, it would discontinue oper[17] ating passenger trains Nos. 14 and 15, running daily except Sunday between Grand Rapids and Detroit. These trains were one of three pairs of trains in which the railroad carried passengers on runs between those cities, the additional trains being designated as Nos. 11 and 12 and Nos. 19 and 20.
Train No. 11 was made up of a diesel locomotive, one mail car, one diner, two streamlined coaches and one roadrailer. Train No. 12 was identical to No. 11 except that it carried three roadrailers. A road-railer is described as a trucktrailer with both rubber tires and steel wheels. It is used to carry mail, express, and other commodities and is capable of being taken off the rails and transported to a post-office or other location. Train No. 14 matched No. 11 in equipment. Train No. 15 was identical with train No. 12. These four trains had operated on the following schedules since September 1, 1946:
Train No. 11. Lv Detroit 8:30 a.m. Ar Grand Rapids 11:35 a.m.
Train No. 12. Lv Grand Rapids 3:30 p.m. Ar Detroit 6:30 p.m.
Train No. 14. Lv Grand Rapids 7:30 a.m. Ar Detroit 10:30 a.m.
Train No. 15. Lv Detroit 5:20 p.m. Ar Grand Rapids 8:25 p.m.
All four trains made regularly scheduled stops at Lansing and Plymouth with a flag stop at Lake Odessa. Trains 14 and 15 made an additional flag stop at Howell.
Trains Nos. 19 and 20 began operating about June 1, 1960. The fact that the C & O could get a new mail contract with the Federal postal department was the primary reason for placing them into service. For some time prior to November 1964, the equipment of the two trains was identical consisting [18] of a diesel locomotive, one mail car, one streamlined combination baggage-passenger coach and sis road-railers. Train 19 was- scheduled to leave Detroit at 11:40 p.m., arriving at Grand Rapids at 2:55 a.m. with a regular stop at Lansing. Train 20 left Grand Rapids at 11:10 p.m. arriving at Detroit at 2:20 a.m. with a stop at Lansing.
The legislature by the enactment of PA 1941, No 134, amended section 13 of the railroad regulation act (PA 1909, No 300) to add two new subsections, reading as follows:
“(c) Passenger service shall not be discontinued in this state without the permission of the commission and unless the railroad desiring to discontinue such service shall first file a petition with the commission, and hearing is held thereon as provided in section 22 of this act. The commission at such hearing shall inquire into the convenience and necessity of the service to the public and shall render its decision thereon. At any hearing upon such petition any person, association, corporation, municipality or governmental unit whose interests shall be adversely affected by the discontinuance of the service, may petition the commission for leave to intervene in said proceedings and participate therein as a party. If it shall appear to the commission from the state of said applicant’s interests that said interests may be adversely affected by the discontinuance of service,' the commission shall grant permission to intervene : Provided, however, That the provisions of .this act shall not apply to the revision of passenger service schedules, the consolidation of passenger trains, temporary or seasonal trains, nor to any railroad operating more than 2 passenger trains in each direction on a week day on the portion of the railroad affected;
“(d) Any common carrier, or other party in interest, being 'dissatisfied with any order of the commission made under the provisions of this section, [19] shall have the same rights to appeal and review as provided under section 26 of this act, as last amended.”
These added subsections remained unchanged until 1965. CL 1948, § 462.13 (Stat Ann 1963 Cum Supp § 22.32).
Following the November announcement of discontinuance of trains 14 and 15, on December 1, 1964, the Michigan public service commission gave notice of its intention to investigate. It held a public hearing on December 21, 1964. C & 0 filed a special appearance and motion to dismiss but the commission, basing its decision on a finding that trains 19 and 20 were not passenger trains within the meaning of the proviso clause of the statute, ordered the railroad to continue to operate trains 14 and 15 until it obtained approval for discontinuance.
Two separate lawsuits evolved from the commission’s order: one, in the superior court of Grand Rapids brought by that city against the railroad company; the other, appeal by the railroad to the Ingham county circuit court. The public service commission, the attorney general, and the cities of Detroit, Lansing and Wyoming intervened in the Grand Rapids case. A temporary restraining order was issued prohibiting the railroad from discontinuing trains 14 and 15 without approval from the commission. The case was transferred to the Ing-ham county circuit court and assigned number 2856-C. The railroad’s appeal had been designated as case No. 2758-C. Trial of the cases resulted in judgments on April 19, 1965: in case No. 2856-C denying the prayer for injunction and dissolving the temporary restraining order obtained by the city of Grand Rapids; and in case-No. 2758-C temporarily restraining the commission from enforcing its order against the railroad company.
[20] Between the date of the filing of the trial judge’s written opinion on April 7, 1965 and the entry of the judgments on April 19, 1965, the statute was changed by the passage of PA 1965, No 15, effective April 16, 1965, which amended the proviso clause to read: “The provisions of this act shall not apply to temporary or seasonal trains.” CL 1948, § 462.13, as amended (MCLA § 462.13, Stat Ann 1969 Cum Supp § 22.32 [c]).
On the date the amendatory act became effective, the public service commission filed motions to dismiss both cases on the ground that the issues had become moot. The motions were denied on April 22, 1965.
Appeals were taken in both cases to the Court of Appeals. Upon review, that Court ordered dismissal of case No. 2856-C for lack of jurisdiction and in case No. 2758-C vacated the commission’s order with permanent injunction against its enforcement. 5 Mich App 492, 509.
Upon an application for leave to appeal being filed in this Court, the cases were remanded to the circuit court, by order entered June 8, 1967, for reconsideration in the light of Southgate v. State Banking Commissioner (1967), 379 Mich 1. The judgment of the Court of Appeals was stayed, the railroad being enjoined and restrained from discontinuing any of its passenger trains between Detroit and Grand Rapids during pendency of the proceedings and until further order of the circuit court.
June 19, 1967, the C & 0 filed a motion in the circuit court in case No. 2758-C to set aside the stay of proceedings previously issued by that court which would thereby reinstate the injunctive judgment against the public service commission entered on April 19, 1965.
[21] On July 3, 1967, the public service commission, joined by the intervenors, filed a motion for summary judgment in both cases. July 7, 1967, the circuit judge announced his opinion on remand, saying in part:
“The order of the Supreme Court in the case at bar, stays the judgment of the Court of Appeals and gives no instruction as to how the circuit court is to further handle the matter, other than what conclusion may be drawn from the statement, quote — fin light of Southgate Bank v. State Banking Commissioner.’
“It will be noted in the Southgate Case that the Supreme Court did not expressly vacate the judgment however, this conclusion was drawn by the author of the synopsis in volume 379 Mich 1 at page 3.
“This court is unable to make such an assumption in this case because the Supreme Court’s order specifically states that the Court of Appeals’ decision is stayed. Unless this court receives further or different instructions from the Supreme Court it feels that it is bound by the Court of Appeals decision interpreting the amendment here in the case at 5 [Mich App] 492.”
The motions for summary judgment were denied and the request to lift the injunction (stay) was also denied. An order was entered August 1, 1967 by the circuit judge stating his inability to comprehend the order of remand by this Court so as to comply with it. The case was transmitted to the Supreme Court by the circuit court clerk on August 16, 1967 and returned without comment on September 25, 1967 to the circuit court. The circuit judge in an opinion filed November 8, 1967, believing himself bound by the decision of the Court of Appeals, determined that the railroad was entitled to discontinue the trains.
[22] Judgment was entered by the circuit judge in case No. 2758-C on November 17, 1967 setting aside the commission order of December 23, 1964 and permanently enjoining the commission from interfering with the discontinuance of the trains. On the same date, judgment was entered in case No. 2856-C dismissing plaintiffs’ complaint.
An order was entered November 17, 1967, suspending judgment in both cases for a period of seven days pending appeal. The previous day the commission, joined by the city of Grand Rapids and the other intervening plaintiffs, had filed a motion in the Supreme Court seeking a remand to circuit court for entry of orders granting the motions for summary judgment. A motion for emergency stay and injunction was filed and granted. This Court considered the motion to remand as an application for leave to appeal from the decision of the Court of Appeals and the orders of the Ingham county circuit judge and granted such application with Justice O’Hara dissenting. 380 Mich 752.
2. The Effect of PA 1965, No 15.
PA 1965, No 15, narrowed the exemption appearing in the proviso clause ■ of the old law by limiting it to “temporary or seasonal trains” thereby conferring jurisdiction on the commission over discontinuance proposals for all other types of passenger service. The obvious purpose of the act was to remove from a railroad thfe 'right to discontinue some .portion of existing passenger service without the necessity of obtaining prior commission approval. If Act 15 applies, all other issues become moot because commission approval to discontinue trains 14 and 15 has not been obtained.
■ The legislature ordered that PA 1965, No 15, take immediate effect. It gave no indication, however, [23] of an intention to apply its provisions retroactively to control action by a railroad company already initiated to discontinue some portion of its passenger service. Tbe rule of statutory interpretation in this State as to retroactive application of legislation is that the legislative intent must be clearly and unequivocally expressed. Finn v. Haynes (1877), 37 Mich 63; Detroit Trust Co. v. City of Detroit (1934), 269 Mich 81; In re Davis’ Estate (1951), 330 Mich 647; Melcher v. Employment Security Commission (1952), 335 Mich 122; Briggs v. Campbell, Wyant & Cannon Foundry Company (1967), 379 Mich 160.
Prior to the effective date of PA 1965, No 15, the public policy of this State, as expressed in the proviso clause of section 13(c), added by PA 1941, No 134, was that the public convenience and necessity would be satisfied by the operation of two passenger trains in each direction on a week day and any regulatory jurisdiction of the commission did not extend to discontinuance of passenger service so long as this minimal requirement was met. The change in the State’s public policy by the enactment of PA 1965, No 15, abridged the prior substantive right of the railroad company to preserve its property and reduce expense by curtailing or abandoning unprofitable passenger service without commission intervention so long as “more than 2 passenger trains in each direction on a week day on the portion of the railroad affected” were operated. The nature of the railroad’s interest distinguishes this case from Southgate, supra. In Southgate it was said (p 4):
“A majority of the Justices find themselves in agreement with the attorney general’s position that the legislative history as well as the wording of former section 39 of the financial institutions act [24] (CL 1948, §487.39 [Stat Ann 1957 Rev § 23.767]) lead necessarily to conclusion that the legislature intended from the beginning to permit a change of location of the main office of a bank only with the banking commissioner’s approval, subject of course to the right under section 21 of judicial consideration and determination ele novo. Decision nevertheless is planted upon unanimous view that the 1.966 amendment, effecting as it does clear requirement of administrative approval, calls for vacation of both judgments below with remand for reconsideration in circuit of all presented issues in the light of that amendment. To this we add firm determination that no right in property is involved and that the plaintiff bank had before — as well as now — no vested right to a change of location of its main office.”
There being no specific legislative expression of intent to make the act retroactive and, further, any such retroactive application being of dubious validity, PA 1965, No 15, can only be applied prospectively from the effective date, April 16, 1965. We confess error in our remand of these cases to the trial court. Southgate is not controlling.
3. The Jurisdiction of the Public Service Commission.
Appellants argue that even if the 1965 amendment is inapplicable, the commission still had jurisdiction because of the factual determination made by it that C & 0 trains 19 and 20 were not passenger trains within the meaning of the proviso clause of section 13(c). Appellee counters that the commission erred as a matter of law in determining that the trains were not passenger trains.
The legislature did not define passenger trains. The trial court and the Court of Appeals each determined that trains 19 and 20 were passenger [25] trains. 5 Mich App 492, 507. No decision by this Court has been cited or found that disposes of the issue.
In a number of cases-the status of “passenger” was not solely determined by the type of equipment making up the train. In Moore v. Saginaw, Tuscola & Huron Railroad Co. (1897), 115 Mich 103, plaintiff was described as a passenger while awaiting passage in the way-car of defendant’s freight train; similarly described, in Stoody v. Detroit, Grand Rapids & Western Railway Co. (1900), 124 Mich 420, while riding in the caboose of a mixed train; and in the caboose of a freight train, Frohriep v. Lake Shore & Michigan Southern Railway Co. (1902), 131 Mich 459. In Van Auken v. Michigan Central Railroad Co. (1914), 182 Mich 331, plaintiff’s decedent was found not to be a passenger but a bare licensee while being given free transportation in the caboose of a logging train. The Court refused to hold plaintiff was not a passenger, on a showing that he was a farmer riding on a miners’ train running between the city and a mine and that he turned in a miner’s ticket which was not good if detached. Perz v. Pere Marquette Railway Co. (1924), 226 Mich 452.
Commissioner of Railroads v. Wabash Railroad Co. (1900), 123 Mich 669, is perhaps even more directly in point. The case involved a dispute over the inclusion of mail and express receipts in gross earnings for the purpose of applying a statutory maximum passenger rate based on gross earnings of passenger trains. Justice Grant, writing for a unanimous court, said (p 671):
“A passenger train consists of its passenger, baggage, express and mail cars. It would do violence to the plainest rules of construction to hold that [26] its gross earnings did not include the receipts from each source of income.”
An Illinois statute required “all regular passenger trains” to stop at the railroad station of county seats to receive and let off passengers. An action was brought against the Chicago & Alton Railroad Company for failure to stop one of its passenger trains at the station in Carrollton. The company was operating three passenger trains through Carrollton each way daily. Two of the trains stopped at the station, but the other, known as the “Kansas City Express,” made no stop except on Sundays. The supreme court of Illinois in Chicago & A. R. Co. v. People, for the use of Pierson (1883), 105 Ill 657, reasoned as follows (p 659) :
“Indeed, the only difference between this and the other passenger trains on the road was, that the other two stopped at all the stations while this did not. On account of this difference, can the train, within the meaning of the statute, be regarded other than a regular passenger train? We think not. The language of the act would not, perhaps, include a wild train, a freight train, an excursion train or a special train; but where a train was engaged in carrying passengers, running regularly every day upon an advertised time card of the company, equipped as all other passenger trains are, we are satisfied such a train was designed by the legislature to fall within the terms of the act, ‘all regular passenger trains.’ Had the legislature intended to except a fast train or a through train from the operation of the law, it would have been an easy matter to have framed the law in such a way that no doubt could have existed in regard to the intention, and if such had been intended, language of a different character would no doubt have been used.”
A Missouri statute required railroads to run at least one regular passenger train each way daily [27] over all lines or parts of lines within the State and provided a criminal penalty for each violation. In State v. Missouri Pacific Railway Co. (1909), 219 Mo 156 (117 SW 1173), the charge against the railroad was described by the court in these words (p 163):
“Here then we have a train equipped with an ordinary passenger coach and also a car divided into compartments, designed to carry baggage in one compartment, mails in another and passengers in another, and the train running on a published schedule as to time, but in addition to those cars the train contained two or more freight cars and that fact alone is what the State relies on to prove that this was not a regular passenger train. The question therefore is, does that train fill the requirements of the Act of 1907, is it a regular passenger train, or, reducing the question to its simplest form, is it a passenger train?”
The Court supplied the answer by saying (p 168):
“The purpose of the act was to afford the traveling public railroad facilities at least once a day at regular times and at all the regular stations, not leaving the public to the whim or caprice of the railroad company whether it would send a train over its road on a particular day. If the general assembly had seen fit to say that in order to render the passenger service more agreeable and expeditious, the railroad company should carry no freight cars in the train it would have said so, or if it had seen fit to define what it meant by a passenger train we would have had no trouble with construing the act as we now have it; but it has been satisfied to say that the defendant must run ‘a passenger train,’ and we do not feel justified in saying that the defendant did not run a passenger train as the statute requires when the evidence shows that it furnished a train equipped as this was with an ordinary pas[28] senger coach furnishing' facilities for the carrying of all the passengers (so far as the evidence shows to the contrary) that desired to he carried and their baggage in the usual way; nor can we say that it was not a regular passenger train when the evidence shows that it was run on regular schedule time and, so far as the evidence shows to the contrary, it stopped at all the regular stations to receive and discharge passengers. We hold that there was no evidence tending to show that the defendant violated the statute.”
In State v. Gladson (1894), 57 Minn 385 (59 NW 487), affirmed 166 US 427 (17 S Ct 627, 41 L Ed 1064), defendant was convicted of failing to stop the train, which he was operating as locomotive engineer, at Pine City, a county seat, contrary to the statute requiring all railroads to stop all regular passenger trains at all county seats. The train was a fast express from St. Paul-Minneapolis to Duluth. The Court held that the fact the train carried the United States mail in addition to passengers did not void the statutory regulation and upheld defendant’s conviction.
The public service commission sought to justify its conclusion that trains 19 and 20 were not in fact passenger trains by reciting that the motive which prompted C & 0 management to place passenger-carrying equipment in the makeup of trains 19 and 20 was not to attract passenger revenue but to save on train crew wages through fewer operating personnel than would be required on a freight and to provide a place for the train crew to ride since trains 19 and 20 were being operated too fast to permit the use of a caboose with safety. The commission noted: the passenger revenues earned during the first 10 months of 1964 by trains 19 and 20 were substantially less than the passenger revenues earned in the same period by trains 11 and 12 and [29]*2914 and 15; the absence of ticket sellers in the railroad stations at the time trains 19 and 20 made their scheduled runs; and the necessity for passengers to carry their own luggage.
Finally, the commission found that even though trains 19 and 20 were passenger trains, it still had jurisdiction because “the railroad has failed to show that such trains are not seasonal trains, and therefore not properly to be considered as part of the two passenger trains in each direction.” It took the position that the burden was on the railroad to show affirmatively that the trains were not seasonal trains. Testimony was elicited that some people who attended night baseball games in Detroit preferred to use the trains to get home rather than staying over. The commission found “the passengers, if any, for whom the passenger car was added to trains 19 and 20 were primarily persons returning from Detroit baseball games in the summer.” The commission concluded that this condition, coupled with the railroad’s refusal 12 days prior to the December 1964 hearing to furnish by months the number of passengers and the passenger revenues for the preceding year on trains 19 and 20, justified its decision that trains 19 and 20 could not qualify as passenger trains.
It could not be successfully contended that trains 19 and 20 were excursion trains. The record shows them to be operating all year on a regular schedule. These facts likewise remove the trains from a seasonal classification. Based upon the reasoning of the foregoing cases, we conclude that the type of equipment available for passenger use the year around plus the holding out of a regularly scheduled passenger service was adequate to constitute trains 19 and 20 passenger trains within the meaning and intent of the proviso clause of section 13(c) [30] as it stood under PA 1941, No 134. Consequently, the C & 0 would be operating more than two passenger trains in each direction on a week day on the portion of the railroad to be affected by the discontinuation notice published in November 1964. The commission erroneously determined the meaning of the words “passenger trains.” The provisions of the act do not apply.
Since the act does not apply, it is unnecessary to discuss the issue as to whether the C & 0 was obliged to exhaust its administrative remedies by petitioning the commission for permission to discontinue passenger trains 14 and 15 prior to seeking judicial relief.
ADDENDUM.
The rules of statutory construction quoted by Justice Kelly from his opinion in Northville Coach Line, Inc., v. City of Detroit (1967), 379 Mich 317, 329, 330, as he in that case states, were drawn from Grand Rapids Motor Coach Co. v. Public Service Commission (1949), 323 Mich 624.
In Grand Rapids Motor Coach, plaintiff sought an injunction against enforcement of a public service commission cease and desist order. The Motor Coach Company had extended its Grand Rapids operations to serve employees of industrial plants located in adjoining Wyoming township but within 2 miles of the Grand Rapids city limits. No application was made to the defendant commission for a certificate of convenience and necessity, the company claiming to be exempt from the motor carrier act. The commission’s cease and desist order prevented plaintiff from operating in Wyoming township. Grandville-Wyoming Transit Company, holder of a certificate of public convenience and necessity from the commission for operations [31] in Wyoming township, intervened, claiming exclusive rights.
The statutory provision there involved was of PA 1933, No 254, art 5, § 2, as amended by PA 1943, No 41 (CLS 1945, § 11352-37, Stat Ann 1947 Cum Supp § 22.567). The pertinent provision read as follows:
“This act shall not apply to:
“(a) Vehicles operated entirely within any city or village of this state; nor to motor carriers of passengers whose local operations may extend a distance of not to exceed 2 miles beyond the boundary of such city or villages in which such local operations are wholly carried on, provided such extension shall not be to or into another city or village.”
In determining the purpose of the statute as a whole, the Court said (p 636):
“The statute as a whole is designed to control the use of the highways and also to guarantee to the public, as a whole, adequate facilities for travel and at the same time to insure to them adequate service by public carriers of passengers.”
As for the statutory exemptions, the Court said (p 637) :
“Thus it is clear from a reading of all these exemptions and especially that in subparagraph (a), which is involved in this case and before us for construction, that the act contemplates that some operations of a carrier will not be regulated even though the carrier itself is so regulated as to certain of its operations. Thus a carrier of passengers which operates between 2 or more cities must obtain a certificate from the commission and submit to regulation by that body, but if it should at the same time also operate a motor coach service entirely within any city under a franchise from that [32] city, such operations would be exempt from regulations by the commission under the first clause of section 2(a), which exempts from the operation of the statute vehicles used wholly within any city or village. Therefore, a single carrier would be engaged in both regulated and unregulated operations at the same time under the provisions of. this statute. For that reason the argument advanced on behalf of intervening defendant that a carrier cannot be both a regulated and nonregulated carrier is untenable for under the unquestioned and clear provisions of this statute it is permitted and contemplated.”
The Court held in that case that the plaintiff’s bill of complaint for an injunction against the enforcement of a cease and desist order entered by the public service commission should not have been dismissed. The language of the statute was construed to permit plaintiff an exemption upon the facts stated in the bill, the Court saying (p 640):
“The operation of the plaintiff company, a motor carrier of passengers, can only be carried on through its vehicles. The operation of the vehicles makes it a motor carrier, and to exempt the vehicles is to exempt the operations of the carrier the same as to exempt the operation of the carrier is to exempt its vehicles.” (Emphasis added.)
In the present case, the proviso contained in PA 1941, No 134, reads as follows:
“The provisions of this act shall not apply to the revision of passenger service schedules, the consolidation of passenger trains, temporary or seasonal trains, nor to any railroad operating more than 2 passenger trains in each direction on a week day on the portion of the railroad affected.” (Emphasis added.)
[33] Under the first test in Northville, this language is clear and unambiguous.