Rapid Railway Co. v. Michigan Public Utilities Commission , 225 Mich. 425 ( 1923 )

On application therefor, this court allowed a writ of certiorari to review an order of the defendant granting a permit to the Wolverine Transit Company "to engage in the business of transporting passengers for hire" between Detroit and Mt. Clemens, pursuant to the provisions of Act No. 209, Pub. Acts 1923. The defendant has made return to the writ. By stipulation, the transit company was made a party defendant, with rights as though the writ had issued as to it, and it now moves to dismiss the writ as improvidently granted, for the reason that, as the statute provides a specific method for the review of such orders, the order in question may not be reviewed on certiorari.

The Michigan public utilities commission was created by Act No. 419, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 8164 [1-12]). Section 9 provides:

"Any order or decree shall be subject to review in the manner now provided by law for reviewing orders and decrees of the Michigan railroad commission." * * *

The Michigan railroad commission was created by Act No. 300, Pub. Acts 1909 (2 Comp. Laws 1915, § 8109 et seq.). Section 3 of the act of 1919 abolished this commission, but provided:

"All the rights, powers and duties now vested by law in said railroad commission shall be deemed to be transferred to and vested in said public utilities commission and shall be exercised and performed thereby, except as herein otherwise provided."

Section 26(a) of the railroad commission act (§ 8134) provides for the review of any order made by the commission by a bill in equity filed in the circuit court for the county of Ingham. The following sections provide that additional proof may be taken on the trial, for further action by the commission in certain cases, and for appeal to this court from the final order of the circuit court as in other chancery cases.

Section 4 of Act No. 209, Pub. Acts 1923, provides:

"Any law or laws now in force or hereafter enacted, regulating the practice before said commission, or the method of reviewing its order, shall apply with equal force and effect to proceedings had or taken before said commission under this act."

The question presented is whether the review therein provided for is exclusive of all other remedies for testing the validity of the order made. The Constitution confers upon this court the power to issue writs of certiorari. Pollitz v. RailroadCommission, 205 Mich. 549, 566. They are not usually allowed when there is another and adequate remedy. In re Phillips, 154 Mich. 139, 141; Township of Custer v. Dawson, 178 Mich. 367,372. An exception has frequently been made and determination had under such writs when necessary to prevent a failure of justice. People v. Turja, 157 Mich. 530, and cases cited. Section 26 (a), providing for review by bill in chancery, limits the time for filing same to thirty days from the making of the order complained of. This time had not elapsed when the petition for certiorari herein was filed in this court. Our allowance of the writ was an indication to counsel that the question presented could be thus disposed of. While we have on several occasions dismissed such writs for the reason that they were improvidently granted (White v. Boyce,88 Mich, 349), we are persuaded that, as petitioner has lost its right to review by bill in chancery, we should consider the question here presented as properly before us for such disposition as can be made of it in this proceeding. Scrafford v. Board of Sup'rs of Gladwin Co., 41 Mich. 647; Alward v.Board of Sup'rs of Oakland Co., 187 Mich. 573; Baldwin v. Boardof Sup'rs of Alger Co., 189 Mich. 372. The claim made that the utilities commission is but a ministerial body, and its orders not subject to review by certiorari, is met by the cases above cited, to which may be added McGurrin v. Grand RapidsTownship Board, 186 Mich. 475, and Pollitz v. RailroadCommission, supra. It is an official board, and its orders certainly are of a quasi-judicial nature.

The title to Act No. 209 and its first section read as follows:

"An act to regulate and define common carriers of persons and property by motor vehicle on public highways of this State, prescribing the payment and fixing the amount of privilege taxes for such carriers, the disposition of such taxes, and prescribing penalties for violation of this act.

"SECT ION 1. After thirty days from the effective date of this act, no person, firm or corporation shall engage or continue in the business of transporting persons or property, by motor vehicle, for hire, upon or over the public highways of this State, over fixed routes or between fixed termini, or hold themselves out to the public as being engaged in such business, unless and until they shall have obtained from the Michigan public utilities commission a permit so to do, which said permit shall be issued in accordance with the public convenience and necessity and shall not be assignable:Provided, that this act shall not apply to carriers operating exclusively within cities or villages."

The majority of the commission held that the language of this section "limits the inquiry" as to "whether a public convenience and necessity exists, to the motor vehicle business." Commissioner Pepper, while then of the opinion that the act "does not fix any limit on the inquiry," in the brief filed by him in this court says:

"An examination of the entire act fails to disclose a single word or provision which in any way indicates that the legislature had in mind the establishment of a policy of protecting existing railroad transportation interests as against motor transport interest."

In the interpretation of statutes, the intent of the legislature, if it can be ascertained from the language of the act, must control. Its legislative history may be considered. The title to the bill (No. 258) as introduced in the senate read: "A bill to regulate carriers of persons and property on the public highways of this State." It contained no language relating to public convenience or necessity. The senate committee reported it favorably, with certain amendments, among them one to insert the language in question. This amendment was agreed to, and the bill as thus amended was referred to the committee of the whole. No change in this amendment was there made, but on third reading the amendment was stricken out. The title was then amended to read as it now does in the act, and, as thus amended, the bill passed, and was sent to the house. When considered in committee of the whole in that body, the words, "shall be issued in accordance with the public convenience and necessity," were again inserted. As thus amended, it passed the house and this amendment was concurred in by the senate.

The purpose of the bill as introduced was to regulate the use of such motor vehicles on the highways. The amendment proposed and adopted was germane to such purpose. We find no intention expressed to do more than this. It is a matter of common knowledge that the traffic on many of our highways has become so great that accidents due thereto are frequent and travel much impeded. The act in question is the first attempt on the part of the legislature to restrict the number of motor vehicles using the highways for the conveyance of persons and property for hire. The bill as introduced sought to do so by imposing a privilege tax upon them. The amendment requiring a finding by the commission of public convenience and necessity, thus empowering the commission in the public interest to determine the number of persons, firms or corporations who should be permitted to so operate, was but another step in the exercise of such control. If a permit is asked for to operate such vehicles between points not served by steam or electric roads, the act empowers the commission to apply the test of public convenience and necessity in determining whether it shall be granted. Ordinarily, the commission would have but little difficulty in determining the question. If the commission find, under the proofs submitted, that the public will be reasonably well served under a permit or the permits theretofore granted, it may refuse to grant another. Without extending the application of this provision beyond the general scope and object of the act, we have a workable statute, complete in all of its details. To extend it as contended for by the plaintiffs will open up a field of investigation and lead to possible results which, we feel constrained to hold, were not within the contemplation of the legislature when the bill was passed. In Estate of Ticknor,13 Mich. 44, 52, Mr. Justice CAMPBELL, speaking for the court, said:

"In order to determine whether this statute reaches the case before us, we must look beyond isolated phrases to the general tenor and design of the act itself. It has always been a rule of construction (and our constitutional provision requiring the purposes of a statute to be indicated by its title, is but an extension of this rule), that the application of particular provisions is not to be extended beyond the general scope of a statute, unless such extension is manifestly designed. Legislatures, like courts, must be considered as using expressions concerning the thing they have in hand; and it would not be a fair method of interpretation to apply their words to subjects not within their consideration, and which, if thought of, would have been more particularly and carefully disposed of."

In Grand Rapids, etc., R. Co. v. Stevens, 219 Mich. 332, wherein it was sought to enjoin the operation of motor vehicles upon the public highways because of their unfair competition as against an electric road, this court pointed out that such regulatory power must be exercised by the legislature and municipalities, and not by the courts. This decision was handed down in July, 1922. It seems clear that there was no intent to exercise such power by this bill as introduced. The amendment, as pointed out, had a well-defined purpose, exclusive of any such intendment.

Our attention is called to the holdings of the courts and commissions in other States. In New York, by chapter 667 of the Laws of 1915, persons or corporations owning or operating a "bus line or motor vehicle line" are included in the term "common carrier" as used in the public service commissions law, and under that law all such carriers must procure a certificate of convenience and necessity before engaging in the business. Substantially similar provisions are found in the Illinois public utilities act (Hurd's Revised Statutes, 1919, chapter 111a). Under our act (209), persons so engaged are deemed to be common carriers and subject to the applicable provisions of the law relating thereto. But we have no statute providing for such a certificate where new steam or electric roads are sought to be constructed and operated.

The grant of the power to determine whether, in view of the service rendered by other means of transportation, a necessity exists, or the public convenience requires, that a new system of transportation should not be permitted in competition with those operating between certain points, should not be inferred unless the language is fairly expressive of such an intent on the part of the legislature. This is an age of evolution in the transportation business. Steam railroad service greatly reduced the earnings of the vessels carrying passengers and freight, and put the stage coach out of business. Electric cars have much affected the business of the steam roads between certain points. The use of motor vehicles will doubtless decrease the earnings of the electric roads. If it be desirable to clothe the commission with the power to prevent such competition by refusing to permit motor vehicles to operate, when the service rendered by the steam and electric roads is adequate to the needs and convenience of the public, we think the legislature should so provide in no uncertain language.

The writ is dismissed.

McDONALD, CLARK, BIRD, MOORE, and STEERE, JJ., concurred with SHARPE, J.