Olson Transportation Co. v. Public Service Commission

163 N.W.2d 213, 381 Mich. 427, 1968 Mich. LEXIS 126
CourtMichigan Supreme Court
DecidedDecember 27, 1968
DocketCalendar No. 20, Docket No. 51,918
StatusPublished

This text of 163 N.W.2d 213 (Olson Transportation Co. v. Public Service Commission) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olson Transportation Co. v. Public Service Commission, 163 N.W.2d 213, 381 Mich. 427, 1968 Mich. LEXIS 126 (Mich. 1968).

Opinion

O’Hara, J.

The proceedings involved in this appeal originated in the Michigan public service commission.

By action of the commission after complaint by competing carriers, notice, and hearing, the commission restrictively amended appellee Olson Trans[430]*430portation Company’s certificate of public convenience and necessity to exclude therefrom the right to transport petroleum products in bulk in tank vehicles. The order further commanded appellee to cease and desist from the transportation of the excluded commodities. The order denied the complainant-appellants’ prayer, made in the form of motion after the proceedings had begun, that appellee’s intrastate certificate be revoked in its entirety.

From this order entered June 14, 1962, appellee appealed to the circuit court of Ingham county. Its bill of complaint contained a petition for an order restraining the commission during the pendency of the litigation from enforcing its order prohibiting the transportation of petroleum products in bulk by appellee. The court entered such order. The court took additional testimony and remanded the case to the commission. The commission reaffirmed its original position. Thereupon the case was once again before the circuit court. The court reversed and vacated the commission’s original order of June 14, 1962. Appeal of right was taken to the Court of Appeals. That Court affirmed the circuit court. We granted leave to appeal.

The essence of the circuit court’s holding was (1) the notice of hearing of the complaint was insufficient and (2) that assuming the adequacy of the notice, no good cause was established in the record to support the commission action restrictively amending appellee’s certificates.

The court placed apparent emphasis upon whether the proceedings which led to the amendment of the certificate were conducted under article 5, § 181 or § 142 of the motor carrier act. Section 14 limits the [431]*431power of the commission in proceedings taken thereunder to the issuance of an order to cease and desist from the violative practice. Section 18 authorizes the commission for “good cause” after an opportunity to be heard to “revoke, suspend, alter, amend or modify” any of its previous orders, and after “like notice” and upon “clear proof of good, just and sufficient cause” to revoke, suspend, alter, amend or modify any certificate or permit issued by it. The Court of Appeals did not reach the question of the merits of the commission’s action in amending the certificate. It based its order solely on the inadequacy of notice to proceed under section 18.

The commission, in its answer to appellee’s bill of complaint in the circuit court, contended that there is no significant difference between its jurisdiction under either section as it applies to the case at bar for the reason that under section 14 it could, upon a proper evidentiary base, order appellee to cease and desist from the transportation of petroleum products in bulk in tank vehicles, and under section 18 it could amend appellee’s certificate to exclude from it the right to do the same thing.

The record discloses that the commission did both. In subparagraph (2) of its orders of June 14, 1962, it amended the certificate restrictively to “exclude the transportation of petroleum products in bulk in tank vehicles.” In paragraph (3) it ordered appellee to “cease and desist from the transportation of petroleum products in bulk in tank vehicles.”

We think the essential notice question is the prejudice, if any, that appellee suffered as a result of the nature of the notice it received. The notice recited:

“On September 30, 1960, an application for investigation of certain operations of Olson Transporta[432]*432tion Company was filed by Mercury Transit Company.
“On October 14, 1960, a copy of the application was served on Olson Transportation Company and a reply has been made thereto. * * *
“It is hereby ordered, that investigation and hearing in this matter will be held in the offices of the commission at Lansing, Michigan at 10 a.m., March 21, 22, and 23, 1961.
“At such time all interested parties shall have the opportunity of presenting such evidence, testimony and argument as they may deem necessary for a determination by the commission in this matter.
“Michigan Public Service Commission
“(s) Norman Berkowitz
Secretary
“sd
“Dated: February 10,1961”

The complaint by Mercury Transit Company is composed of 15 paragraphs. Paragraph 13 thereof alleges:

“Any right to transport petroleum products, in bulk, in tank vehicles under the authority described in paragraph 5 of this complaint should be eliminated.”

In its reply to that paragraph appellee Olson Transportation Company answered:

“Without admitting the facts alleged, Olson denies the legal conclusion alleged in paragraph 13, particularly the conclusion that the mere failure to physically move one of several hundred authorized commodities, if such occurred, constitutes a statutory ground for the revocation or restriction of a certificate authorizing the transportation of general commodities.” (Emphasis supplied.)

We find it very difficult to reconcile appellee’s claim that it was unaware that its certificate misrht [433]*433be revoked or restricted when, it affirmatively asserted that the reasons alleged by appellant for the elimination of the transportation of petroleum products in hulk in tank vehicles did not constitute a “statutory ground for revocation or restriction.” It would seem that this issue was clearly framed by the complaint and answer. A review of the transcript of the testimony adduced in the commission hearings shows it to have been concerned with this issue, namely, the right of appellee to perform the transportation of petroleum products in hulk in tank vehicles. It was the position of appellants Mercury Transit Company and Stang Tank Lines which had intervened at the commission hearings that appellee’s intrastate authority acquired by transfer pursuant to required commission approval from L & L Trucking Service did not include the right of bulk petroleum transportation, and that the transferee Olson could acquire no greater rights than had been enjoyed by the transferor.3

On the question of prejudice of the appellee Olson by reason of the nature of the notice, it should he noted that after the adverse decision by the commission, appellee had the right under the statute to seek rehearing before the commission. Section 20 [434]*434of article 5 of the motor carrier act4 also provides that on appeal of a commission order to the circuit court of Ingham county evidence may be introduced which if found by the court to be different from that offered upon hearing before the commission, or additional thereto, the court shall transmit the record back to the commission for reconsideration. We cannot but conclude that if, arguendo,

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Cite This Page — Counsel Stack

Bluebook (online)
163 N.W.2d 213, 381 Mich. 427, 1968 Mich. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olson-transportation-co-v-public-service-commission-mich-1968.