Corporation & Securities Commission v. Michigan Consolidated Gas Co.

152 N.W.2d 397, 7 Mich. App. 552

• Court: Michigan Court of Appeals
• Decided: December 12, 1967
• Docket: Docket 1,493
• Status: Published

Opinions

J. H. Gillis, J.

This is an appeal from the Ingham county circuit court’s judgment granting defendant Michigan Consolidated Gas Company’s motion for summary judgment. The trial court in granting defendant’s motion stated:

“The court having filed a written opinion holding that as to the Detroit Edison Company no controversy existed between the parties because among other things of the principles laid down in the Detroit Edison Company v. Corporation & Securities Commission, 367 Mich 104, and said opinion of this court being likewise controlling as to defendant Michigan Consolidated Gas Company as to said principles and for other reasons assigned in said opinion.”

Plaintiff, Lenton G. Sculthorp, commissioner of the Michigan corporation and securities commission, contends that the Edison Case is not determinative ' of the present controversy in that it- was a 3-2 decision with three justices not sitting. Plaintiff also contends that the instant case involves the additional question of whether the investment tax credit is a part of surplus for franchise fee purposes and this additional issue distinguishes the instant case from both the Supreme Court’s Edison decision and this Court’s recent interpretation of that decision.¹

The introduction of the investment tax credit into the instant case does not create any substantive distinction between this case and the previous Edison decisions. A perusal of the complaints in the instant case and the recent Edison decision discloses that the question involving the investment tax credit was pleaded in both cases in an identical manner. No distinction is shown between the accounting treatment of the reserve for deferred Federal income taxes and the investment tax credit, and in plaintiffs’ complaint it was alleged that defendant claims, “They are entitled to treat the investment tax credit provided for by section 38 of the 1954 INC in a comparable fashion.” This Court cannot discern any difference between the complaints filed against the Edison Company and the Michigan Consolidated Gas Company, nor do we find that the interjection of the investment tax credit in oral arguments has any effect on the substantive issue involved.²

The ultimate issue presented is whether the corporation and securities commission was and is legally bound to follow the accounting procedures set up by the Michigan public service commission with respect to utilities.

It is plaintiffs’ position that the Supreme Court’s 3-2 decision in Edison is not controlling since it was a decision made by less than a majority of the Court. Plaintiffs further contend that McLouth Steel Corporation v. Corporation & Securities Commission (1963), 372 Mich 76, 90, is determinative of the proposition that accounting procedures do not control and “that the State has the power and authority to make a determination at variance with labels employed by the corporation.”

The McLouth decision is readily distinguishable from the present case as it does not involve a public utility whose accounting procedures are determined by the Michigan public service commission. This commission is a State agency that currently has jurisdiction over all public utilities³ and pursuant to this authority has prescribed its uniform system of accounts for gas utilities.⁴ When defendant follows the accounting procedures prescribed by the public service commission, it is complying with the accounting procedures of the State agency which has jurisdiction over public utilities. Even though the corporation and securities commission may, in certain circumstances, disregard the acounting procedures of a private corporation (as in McLouth), it would be incongruous and legally indefensible to allow one State agency to disregard the accounting directives of a second State agency which has been empowered to prescribe these procedures and which directives have been followed and relied on by the defendant utility.

In dismissing plaintiffs’ suit the trial court did not state that the subject matter of the complaint as pertains to the Michigan Consolidated Gas Company is barred by the Detroit Edison Company v. Corporation & Securities Commission (1962), 367 Mich 104. The court referred to its written opinion which dismissed the suit against the Edison Company, “because among other things of the principles laid down in” Edison, supra. The court then stated that because of the principles followed and for “other reasons” its opinion in the Edison Case was likewise controlling as to defendant, Michigan Consolidated Gas Company.

The trial court is not precluded from holding that its prior determination of the law in this area is controlling in the instant case, and the fact that the original opinion was based upon principles set forth in a 3-2 Supreme Court decision is immaterial.

Judgment affirmed. No costs, a public question being involved.

Lesinski, C. J., concurred with J. H. Gillis, J.

1 Corporation & Securities Commission v. American Motors Corporation (Appeal re Detroit Edison Company) (1966), 4 Mich App 65.

2 See CL 1948, § 450.304, as amended (Stat Ann 1965 Cum Supp § 21.205). — Reporter.

3 CL 1948 and CLS 1961, § 460.1 et seq. (Stat Ajm 1965 Cum Supp § 22.13[1] et seq.).

4 1954 AC, §R 460.940,