Utilities Commission v. Telephone Co. , 228 Mich. 658 ( 1924 )

Attempt is being made to review in this court an order of the Michigan public utilities commission by mandamus proceedings rather than by the mode pointed out by the statute. In my opinion, this court should not review the merits of the commission's orders by mandamus proceedings. A review by that procedure not only violates the statute, but reverses the precedents of this court for upwards of half a century.

The Michigan public utilities commission made and entered an order against the Michigan State Telephone Company on July 12, 1922, reducing the telephone rates then in force in the city of Detroit and elsewhere in the State in the annual sum of $1,645,179. The Michigan State Telephone Company was displeased with this order. It desired to review the order of the commission. Being in this mood there was just one way, and only one way, it could do so in the State court, and that was to follow the statute, which prescribes that:

"Any telephone company or other party in interest, being dissatisfied with any final order of the commission made in any proceeding under this act, may within thirty days from the issuance of such order and notice thereof, commence an action in the circuit court, in chancery, against the commission as defendant to vacate and set aside any such order on the ground that the certificate granted or withheld is not in accordance with the rights of the parties, that the rate or rates, charges, joint rate or rates fixed are unlawful or unreasonable, or that any such regulation, practice or service fixed in such order is unreasonable; in which suit the commission shall be served with a subpæna and a copy of the complaint. The commission shall file its answer and on leave of court any interested party may file an answer to said complaint. Upon the filing of the answer of the commission said cause shall be at issue and stand ready for hearing upon ten days' notice by either party. All suits brought under this section shall have precedence over any civil cause of a different nature pending in such court, and the circuit court shall always be deemed open for the hearing thereof, and the same shall proceed, be tried and determined as other chancery suits. Any party to such suit may introduce original evidence in addition to the transcript of evidence offered to said commission, and the circuit courts in chancery are hereby given jurisdiction of such suits and empowered to affirm, vacate or set aside the order of the commission in whole or in part, and to make such other order or decree as the courts shall decide to be in accordance with the facts and the law." 2 Comp. Laws 1915, § 6702.

This statute furnishes a complete and adequate remedy for reviewing the orders of the Michigan public utilities commission, and is the only remedy provided by statute for reviewing the validity and reasonableness of its orders. Yet, in the face of this statutory remedy, attempt is made to review the validity and reasonableness of the order of the commission by mandamus proceedings.

Upon the question whether this court would entertain a mandamus proceeding for the purpose of reviewing a case like the present one, where relator had an adequate remedy by appeal, this court has said:

"The writ of mandamus will not be allowed to take the place of an appeal or writ of prohibition, or any other writ to review the action of the lower court." Wells v.Montcalm Circuit Judge, 139 Mich. 544.

In view of this language it is not clear by what right the Michigan State Telephone Company is permitted to review an order of the commission by mandamus proceedings in this court when the statute has expressly created an adequate remedy for that purpose in a court of chancery.

In Mardian v. Wayne Circuit Judge, 118 Mich. 353, in denying a petition for writ of mandamus, the court said:

"It is a well settled rule that mandamus will not lie when there is another adequate remedy. The following Michigan authorities will be found to sustain this rule: People v.Jackson Circuit Judges, 1 Doug. 302; People v. Wayne CountyCourt Judge, 1 Mich. 359; People v. Wayne Circuit Judge,19 Mich. 296; People v. Allegan Circuit Judge,29 Mich. 487; O'Brien v. Tallman, 36 Mich. 13; Stall v. Diamond,37 Mich. 429; Olson v. Muskegon Circuit Judge, 49 Mich. 85;Delhi School District v. Ingham Circuit Judge, Id. 432; Lloyd v. Wayne Circuit Judge, 56 Mich. 236 (56 Am. Rep. 378); Perrin v. Lepper, 56 Mich. 351; Scott v. WayneCircuit Judges, 58 Mich. 314; Burt v. Wayne Circuit Judge,82 Mich. 251; Eyke v. Lange, 90 Mich. 592, 104 Mich. 26; Corby v.Wayne Probate Judge, 96 Mich. 11; Thomas v. Wayne CircuitJudges, 97 Mich. 608; Hall v. Wayne Circuit Judge, 111 Mich. 395; Aldrich v. Wayne Circuit Judge, Id. 525."

To those cited in this case may be added more recent cases.Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270; St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417; S. K. Martin Lumber Co. v. Menominee Circuit Judge,116 Mich. 354; Reed v. St. Clair Circuit Judge, 122 Mich. 153;Maynard v. Ingham Circuit Judge, 124 Mich. 465; Grand Rapids,etc., R. Co. v. Charlevoix Circuit Judge, 133 Mich. 122 ; Cattermole v. Ionia Circuit Judge, 136 Mich. 274; Roberts v. Lenawee Circuit Judge, 140 Mich. 115; Sharp v. MontcalmCircuit Judge, 144 Mich. 328; Hitchcock v. WayneCircuit Judge, 144 Mich. 362; Cosgrove v. Wayne Circuit Judge,144 Mich. 682; City of Flint v. Genesee Circuit Judge,146 Mich. 439; Hartz v. Wayne Circuit Judge, 164 Mich. 231;Olds Motor Works v. Wayne Circuit Judge, 164 Mich. 470; Craig v. Ingham Circuit Judge, 171 Mich. 33; Trumbull Motor Car Co. v. Wayne Circuit Judge, 189 Mich. 554. Many other Michigan cases might be cited to the same effect as this court has been steadily holding to this rule ever since it was created.

The rule appears to be the same in other jurisdictions:

"Appeal or writ of error alone will accomplish the purposes of review and correction, and mandamus will not be allowed to supplant these, in accordance with the general principle that where relief may be obtained through the ordinary channels of the law the writ is not an appropriate remedy: Ex parte Morris,44 Ala. 361; Ex parte Southern Telegraph Co., 73 Ala. 564; Exparte Williamson, 8 Ark. 424; Early v. Mannix, 15 Cal. 149;People v. Clerk of District Court, 22 Colo. 280 (44 P. 506);Shine v. Kentucky Cent. R. Co., 85 Ky. 177 (3 S.W. 18); State v. New Orleans District Court, 10 La. Ann. 420; State v.New Orleans District Court, 12 La. Ann. 342; Olson v. MuskegonCircuit Judge, 49 Mich. 85; Haney v. Muskegon Circuit Judge,101 Mich. 392; State v. Lubke, 85 Mo. 338;State v. Megown, 89 Mo. 156 (1 S.W. 208); People v. SuperiorCourt, 18 Wend. (N.Y.) 575; Ex parte Bostwick, 1 Cow. (N.Y.) 143; People v. Lott, 42 Hun (N.Y.), 408;Ewing v. Cohen, 63 Tex. 482; State v. Morris, 86 Tex. 226 (24 S.W. 393); State v. Allen, 8 Wn. 168 (35 P. 609); State v.Superior Court, 24 Wn. 438 (64 P. 727); State v. Taylor,19 Wis. 566; Ex parte Baltimore, etc., R. Co., 108 U.S. 566 (2 Sup. Ct. 876); In re Morrison, 147 U.S. 14 (13 Sup. Ct. 246);American Construction Co. v. Railway Co., 148 U.S. 372 (13 Sup. Ct. 758); United States v. Swan, 13 C.C.A. 77, 65 Fed. 647." 98 Am. St. Rep. 892, note.

Cyc. states the rule as follows:

"Mandamus will not lie where there is an adequate remedy by appeal or by writ of error" (citing numerous authorities from 25 different States). 26 Cyc. p. 173.

"The existence of a specific statutory remedy will excludemandamus." Id. p. 175.

The text last cited refers to the following Michigan cases:Secretary of State v. National Salt Co., 126 Mich. 644;Johnston v. Mitchell, 120 Mich. 589; Sherman v. Board of Sup'rsof Sanilac Co., 84 Mich. 108.

This text is directed to the precise situation that exists in this case. There is a specific statutory remedy provided by the statute. When this remedy exists no other will be permitted.

The rule as stated by R. C. L. is in accord with this. It is said:

"It is a general rule that the extraordinary remedy of mandamus cannot be resorted to in a civil proceeding to subserve the purpose of an appeal or writ of error; therefore,where a statute gives the right of appeal from the decision ofa board or tribunal to review its action, this is ordinarilydeemed an adequate remedy so as to preclude the issuance of amandamus to coerce such tribunal in respect to such matter, and the same is held true where the matter may be reviewed on writ of error. Thus where the statute gives a right of appeal from the action of an excise board denying a license to sell intoxicating liquors, it is held that mandamus will not issue to compel the granting of the license; and it has been held by the Federal Supreme Court that where a remedy by appeal from the decision of the commissioner of patents is given by statute, mandamus will not lie to compel him to issue a patent, as the remedy by appeal is adequate." 18 R. C. L. p. 138.

In Jay v. O'Donnell, 178 Ind. 282 (98 N.E. 349, Ann. Cas. 1915C, 325), an attempt was made as here to review the action of a board where an appeal was given by the statute. Jay was denied a license to sell intoxicating liquor by the board, and instead of taking advantage of the statutory appeal he attempted to coerce them by a writ of mandamus. In denying this application the court said:

"Section 22, Acts 1911, page 244, expressly authorizes an appeal from a decision of the board of commissioners in a proceeding before said board to obtain a license to sell intoxicating liquors as a beverage. When there is an adequate remedy by appeal mandamus will not lie" (citing several authorities).

This case presents the same question as is involved in the one under consideration, and the Indiana court held in accordance with the universal rule that the statute having given a remedy by appeal from the orders of the commission, mandamus would not lie. That is precisely the situation in this case. The legislature has created the Michigan public utilities commission, given it certain powers, provided for hearings and orders, and has further provided a remedy in a court of chancery if either party be aggrieved at its orders. When this is done it precludes all other remedies.

Another instance much like the present one is United States v. Duell, 172 U.S. 576 (19 Sup. Ct. 286). One Bernardin had been refused a patent. Instead of taking his statutory appeal he attempted to coerce the commissioner of patents by mandamus proceedings. Of this attempt the Supreme Court of the United States said:

"Nothing is better settled than that the writ of mandamus will not ordinarily be granted if there is another legal remedy, nor unless the duty sought to be enforced is clear and indisputable; and we think that under the circumstances, the remedy by appeal existed."

It has been suggested that inasmuch as the parties raise no objections to the jurisdiction of the court, the objections, if any thereto, are thereby waived. This suggestion might have some force were it not for the fact that this court has held on numerous occasions that parties cannot confer jurisdiction on this court by waiver or consent. Riley v. Railway, 163 Mich. 327; J. F. Hartz Co. v. Lukaszcewski, 200 Mich. 230; Bolton v.Cummings, 200 Mich. 234; Miller v. Johnson, 201 Mich. 535;Monroe, Boyce Co. v. Ward, 207 Mich. 369; Potaschnik v.Kaimola, 216 Mich. 406.

It is also the practice of this court to raise jurisdictional questions itself, where they involve the subject-matter.Bolton v. Cummings, supra; J. F. Hartz Co. v. Lukaszcewski,supra; Anway v. Railway, 211 Mich. 592 (12 A.L.R. 26).

Where the legislature has specified the remedy it is somewhat difficult to understand how the parties, by commission or omission, can waive the provision of the statute.

In an effort to justify a departure from this well-settled rule, it is said that mandamus proceedings are being used to put into effect a rate made by the commission. It is a severe strain on one's credulity to believe that the Michigan State Telephone Company would seek and consent to an order to show cause against itself to compel it to do what it insists it cannot do, and if it does, it will confiscate its property. The claim is a mere subterfuge. The hearing in this court has proceeded as a review on the merits. Questions have been raised and argued in this court affecting the validity of the commission's order precisely the same as though the statutory remedy by appeal had been invoked.

In a further effort to justify the proceeding it is stated that after the order was made by the commission defendant had its choice to review the order in the United States district court or in the State court. That it did file a bill in the United States court for an injunction on the ground that the rates prescribed by the order were confiscatory. That while this proceeding was pending the mandamus proceeding was adopted. Conceding this all to be true, it did not change the Michigan rule of procedure, and there is nothing in section 266 of the United States judiciary code which would justify a departure from the rule of the State court. When the telephone company elected to review the order in the State court there was but one lawful way to do it, namely, by the statutory remedy.

It is asserted with much confidence that an identical jurisdiction was entertained by the Kansas supreme court inState, ex rel. Hopkins, v. Telephone Co. (Kan.), 223 P. 771, P. U. R. 1924D, 388.

The case referred to is a review of public utility questions by mandamus proceedings, but the Kansas statute, in expressterms, authorizes the commission to "compel compliance with the orders of the commission by proceeding in mandamus, injunction or other appropriate civil remedies." * * * Kansas Rev. Stat. 1923, § 66-139.

The State of Kansas has provided no specific procedure to review orders of its public utility commission. It has, however, provided that the public utility commission may enforce its orders by mandamus, etc. The Kansas case, therefore, does not support the assertion that this court has jurisdiction, for the very good reason that the legislature in this State has expressly prescribed the mode of procedure if a review is desired. The cases differ in this: The Kansas court proceeded in that case in obedience to its statute, whereas this attempt is in violation of the statute of Michigan, and is also in violation of the settled rules of this court.

A part of the net gain to the telephone company by reason of this legal circumlocution has been to avoid the force of the following provision of the statute:

"No injunction shall issue suspending or staying any order of the commission, except upon application to the circuit court, in chancery, or to the judge thereof, notice to the commission having been given and hearing having been had thereon." 2 Comp. Laws 1915, § 6703.

Beside this the company has gained an extension of time for at least one year in which to charge a rate which the commission ordered reduced. It is well known that where issues are framed in mandamus proceedings and referred to a master to take proofs and make findings, it is always a slow and painful method. This instance has been no exception. It has consumed at least double the time that would have been consumed by the summary remedy for appeal provided by the statute.

It is rather unfortunate that it should become necessary to raise a question of practice in a matter of so much importance. When, however, the statute is ignored and the settled precedents of the court are transgressed, the question should be interposed in big cases as well as small ones.

The "order to show cause" should be dismissed because improvidently issued. No steps having been taken to review the order of the commission by the statutory appeal within the statutory time the rates fixed by the order of the commission should be declared to be in force.