No. 13557 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

STATE ex rel., CHEMICAL TRANSPORT et al., Relator and Appellant,

-vsGORDON E. BOLLINGER et al., Respondent and Respondent.

Appeal from: District Court of the First Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: Scribner and Huss, Helena, Montana A. 

### W. Scribner argued, Helena, Montana For Respondent: Geoffrey L. Brazier argued, Helena, Montana Charles H. Dickman, Helena, Montana Robert Smith argued, Helena, Montana

Submitted: April 20, 1977 Decided: 

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Filed:

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### Mr. JusticeGene 

### B. Daly delivered the Opinion of the Court. Relator appeals from the order and finaljudgment of the district court, Lewis and Clark County. The district court order granted the Consumer Counsel's motion todismiss relator's application for

### writof mandate. Judgment was entered infavor of the Consumer Counsel, intervenor respondent here. Relator 

### is a motor vehicle common carrieroperating in interstate and intrastate commerce. 

### Its intrastate operations

are conducted under certificates issuedby theMontana Public Service Commission and under the provisions of Title 8, Chapter 

### 1,Revised Codes of Montana. On June 26, 1975, relator filedwith the Public Service Commission itsSupplement No. 6 toCommodity Tariff No. 2(A), specifying proposed increases in intrastatemotor carrier rates

on acid chemicals and other commodities, tobe effectiveAugust 

### 1, 1975. On or about the time of filing 

### its Supplement No. 6, relator also filed its sworn statements and exhibits supporting the proposed changes and revisions. On July 22, 1975, the Public Service Commission entered a suspension order, pursuant to section 8-104.5, R,CbM.1947, suspending relator's proposed tariff schedule, pending a hearing

as tothe reasonableness of the proposed increased rates. The Public Service Commission set the matter to be heard on November 18, 1975. In 

### itspleadings tothe Public Service Commission, atthe administrative level, the Consumer Counsel requested a public hearing. Prior to the date of the hearing, the Consumer Counsel served written interrogatories upon relator demanding the same be answered before the hearing. Relator objected to the interro-gatories. The Public Service Commission notified the parties that oral argument upon the objectionswould be heard atthe time set for hearing on the merits. On the date set forhearing, the Public Service Commission heard oralarguments on the objections to interrogatories, but declined tohear the case on 

### itsmerits and postponed,the matter to a date and time tobe setby the commission. Atthat time 119 days had elapsed since the date of the order suspending relator's new tariff schedules. During oral argument the Public Service Commission ehairman asked relator's counsel whether relatorwas willing towaive the 180 day period of suspension. Counsel replied relatorwas unwilling todo so. The matter was never rescheduled forhearing. On December 

### 3, 1975 (15 days after theprior hearing and 134 days after the suspension order) the Public Service Commission overruled relator's general objections to the interrogatories. The Public Service Commission didnot notify the parties of this action until January 5, 1976 (33 days after the actionwas taken and 

### 167days after the suspension order). The ruling purported to give relator untilJanuary 19, 1976, (181 days after the suspension order) to answer or object to the Consumer Counsel's interrogatories. By letter dated January 16, 1976, relator advised the Public Service Commissionf "Please be advised that the 180 day-:period which 

### is prescribed in section 8-104.5, R.C.M. 1947, expires on January 18, 1976. No hearing having been held nor order issued within such period, pursuant to the aforementioned section, the tariff revisions proposed in this docket are deemed approved and effective as filed. "For thisreason we consider the interrogatories submitted in connection with a hearing in this proceeding asmoot, and do not intend to respond to them."Relator thereafter tendered to the Public Service Commission for filing 

### its Supplement No. 7, notifying customers of the increased rates. By letterdated January 21, 1976, the Public Service Commission rejected Supplement No. 7 and ordered relator: 

### "*

# *

# * not to assess or collect the fullamount of the various chemical rate increases requested

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# * * until such time as theMontana Public Service Commission makes a finaldetermination as to the validity and lawfulness of such increase inrates. 

# *

# ** "*

# * * the Commission feels the interrogatory question is stillat issue." On January 

### 28, 1976, relator filed an application for

### writ of mandate inthe district court. Upon issuance of the

### writof mandate or other appropriate 

### writ, relator sought the district court's directive (1) instructing the Public Service Commission to accept for filing relator's Supplement No. 7 to 

### its Commodity Tariff No. 2(A), thus implementing the rate increases provided for inSupplement No. 6; (2) thatjudgment be entered in favor of relator for reasonable attorney's fees and costs; and 

### (3) that respondents be ordered to appear and show cause why: the relief sought should not be granted. The district court issued

an order to show cause compelling respondents toappear before the court on February 

### 11, 1976. On February 6, 1976, the Consumer Counsel filed a motion to intervene and a motion to dismiss relator's petition on the ground it failed to statea claimupon which relief could be granted. The district court granted Consumer Counsel's motion to dismiss and judgment was entered in favor of Montana Consumer Counsel, the intervenor respondent. The judgment of the district court held:

### "*

# * * that insofar as the noted provisd of Section 8-104.5 works or canwork to shut out a hearing requested by the consumer counsel it conflictswith out constitutional and legalprovisions having to do with the counsel." The parties tothis action 

### list several issues for review. However, we find the central and controlling issue 

### iswhether the Public Service Commission 

### isjustified inrefusing to accept for filing relator's proposed tariff schedule on the grounds section 8-104.5 conflicts with theMontana Constitution, 'the Montana Consumer Counsel Act, theMontana Administrative Procedure Act and other pertinent statutory provisions affecting the Montana Consumer Counsel. Sections 8-104-;I., 8-104.2 and 8-104.5, R.C.M. 1947, set forth the procedures for revising motor vehicle: common carrier rate schedules: "8-104.1. Board's duty to fixrates. 

### It shallbe the duty oftheboard to fix, alter, regulate and determine just, fair, reasonable, nondiscriminatory, and sufficient rates, fares, charges, classifications, and rules

- - of service for the operation of classA and B motor carrierswithin this state. The board alsomay fixand determine reasonable maximum or minimum tates for the operations of any class C motor carrierwhen the same arerequired for the best interests of public transportation." (Emphasis added.) "8-104.2. Rate schedules, filingwith board. Every classA orB motor 

# -carrierholding a certificatemust maintain on file. with the board a fulland complete schedule of its rates, fares, charges, classifFcations, rules of service, and any and alltariff provisions relating to such rates, fares, charges, classifications, or rules. Every schedule on filewith and approved by theboard on the effective date of thisact shall remain infull force and effect until changed ormodified by the board orby the carrier with the approval of the board. "No change, modification, alteration, increase, or decrease inany rate, fare, charge, classification, or rule of service shallbe made by any motor carrierwithout firstobtaining the approval of the board. The board shall prescribe rules and/or regulations providing for the form and styleof allschedules and tariffsand for the procedures tobe followed in filing orpublishing any changes or modifications of the same." (Emphasis added.)"8-104.5. Changes, revisions of rate schedules, how made. No motor carrier shall change or revise any rate, fare, charge, classification, or rule of service contained in 

### itsshedulewithout firstobtaining approval therefor from the board. Such changes or revisions shallbe made by filingwith theboard the tariff sheet or sheets containing such changes or revisions, plainly stating the change orchanges, or revision or revisions, tobe made; provided further, that the public shallbe provided with such notice of the proposed changes or revisions as the board shall, by rule, require. The tariff sheet or sheets containing such changes or revisions shallbe deemed approved and effective thirty (30) days after the same are filedunless the proposed revisions or changes are suspended or disallowed by theboard prior to the expiration of the thirty (30) day period; provided however, that the board may, for good cause, allow any change or revision tobecome effective on less than thirty (30) days after the filingthereof. Upon filing such changes or revisions, alltariff sheet or sheets, when suspended by the board, must be supported by such prepared testimony and exhibits from the motor carrier as

### will support such changes or revisions. The prepared testimony and exhibits must be filedwith the commission thirty 

### (30) days after the effective date of such suspension. Such testimony and exhibits may be supplemented prior to, or atthe time of hearing, and supplemental exhibits may be filed after the close of the hearing atthe direction orwith permission of the commission. "Upon 

### itsown initiative, or upon the complaint of any interested party filedwith the board within twenty (20) days after the date upon which a change or revision of any rate, fare, charge or classification 

### is filedwith theboard, the board may suspend the operation of such rate, fare, charge, orclassification for a period not to exceed one hundred eighty (180) days, provided however that the order directing such suspension must be issued by theboard not less than two (2) business days prior to the proposed effective date; and provided further, that the motor carrier or carriers

,- "_filing; such rate, fare, charge, or classification shallbe given prompt noticeby the complaining party mailing a copy of the complaint concerning such proposed change or revision to the carrier or publishing agent, and such carrier or carriers also shallbe given an opportunity toreply to any such complaint. If the proposed change or revision 

### is in a tariff issued by a tariff publishing bureau for a motor carrier or carriers, notice to such bureau of any complaint willconstitute notice to the participating carriers in such tariff. When the suspension of any proposed change or revision ina tariff is ordered by the board, it shallalso order 

### a public hearing to consider the reasonableness of the proposed change or revision; due notice shallbe given for such hearing toallknown interested,oraffectedpersons and the same shallbe allowed to appear and present evidence. After considering the evidence presented atsuchhearing, the board shall issue an order approving, denying, ormodifying theproposed change or revision; provided however, that unless such hearing is'held and such order is issued within one hundred eighty (180) days from the date upon which the suspensionwas ordered, the proposed chanp.e or revision shallbe deemed approved and effective as filed." (Emphds addedJ Relator contends the plain, clear and unambiguous language of section 8-104.5- specifies tariff revisions become effective 

### 30 days after they are filed, unless within thatperiod the Public ServiceCommission issues a suspension otder, which may

cover a period of no longer than 180 days. The Public Service Commission 

### is empowered to approve, deny ormodify the submitted tariff schedules, within the suspension period, afternotice and hearing. Unless a hearing isheld and an order issued by the Public Service Commission, the tariff revisions are deemed approved and effective as filed. Since the Public Service Commis-' sion did not hold a hearing inthe instant case, within 180 days from the date the suspension was ordered, relator concludes

a 

### writof mandate should be issued compelling the Public Ggrvice Commission toaccept for filing, as approved and effective, relator's tariff schedule. Respondents argue "changing legal relationships inthis case1'act to amend ormodify the 180 day suspension rule inthe Motor Carrier Act when the 180 day rule deprives the Consumer Counsel of 

### its right to a hearing. Respondents specifically cite: (1) 

### Art. 11, Section 8, 1972Montana Constitution, which insures the right of public participation inthe operation of state agencies prior to finaldecision; (2) Art. XIII, Section 

### 2, 1972Montana Constitution, which establishes the office of Consumer Counsel for the representation of consumer interests before the Public Service Commission, and 

### (3) theMontana Administrative Procedure Act as the catalysts precipitating the changing roles inthe field of utility and transportation rate regulation.

### We believe respondents have incorrectly characterized the issue in this case as a conflict between statutorymandat~s and constitutionalguarantees. Thepresent action arose only because the Public Service Commission failed to hold a procedural hearing within the 180day statutory limitation. The sole obstaclewhich confronted the Public Service Commissionwas a determinationof whether ornot relatorwas compelled to answer written interrogatories submitted by the Consumer Counsel. We fail to seehow such a deterent could be the basis for the Public Service Commission failing to timely schedule the requested proceduralhearing. TheMontana legislature Eixed 

### 180 days as themaximum period of suspension. It seems clear to this Court that our extensionof that period would in effect amend the statute and that is a matter beyond this Court's power. Art. 111, Section 1, 1972Montana Constitution;Arrow Transportation Co.



### v. Southern Railway Co., 308F.2d 181 (1962), cert. granted 371 U.S. 859, 372U.S. 658, 83 S.Ct. 984, 10

### L ed 2d 52 (1963). We likewise fail to find any constitutional basis for overturning the statute. Even if this Caurtwas empowered to amend the 180 day period of suspension, the Consumer Counselwould have no

assurance a timely hearing would be scheduled by the Public Service Commission. Without any statutoryperiod of maximum suspension,motor carriers could incur substantial time lags in obtaining rate increases since the Public Service Commission could postpone and reschedule hearings without restriction. If the 180day period of suspension is inadequate the proper recourse is for respondents to seek legislative amendment of the statute, not judicial interference.We note the resultant effect of the 180 day period of suspension 

### isnot to deprive the ~onsumerOtnrn~f?zbor any other interested member of the public, a vehicle for challenging the reasonableness of a motor carrier's proposed intrastate rate increase. Section 8-104.4, R.C.M. 1947, inpart specificallyprovides:

"The board may, upon 

### its own initiative or upon the complaint of any interested party, investigate any rate, fare, charge, classification, or rule of service contained 

### in the schedule of any motor carrier; if the board shall find, after such investigation, that any such rate, fare, charge, classification, or rule of service 

### isunfair, unjust, unreasonable, or discriminatory, it shalldisallow the same and fixa rate, fare, charge, classification, or rule of servicewhich shallbe fair, just, reasonable 

## ,and nondiscriminatory, and it shallorder the affected motor carrier or carriers to conform to such modified schedule; provided, however, that each motor carrier affected by any complaint or investigation shall firstbe given notice of the same and an opportunity tobe heard before theboard." In this opinion this Court refrains from considering either the propriety or reasonableness of relator's proposed rate increases. We hold only that the Public Service Commission, in refusing toapprove and give effect torelator's proposed tariff schedules, has failed toperform a clear legal duty arisingunder theMontana Motor CarrierAct. The order and judgment of the district court are reversed and the cause 

### is remanded for issuance of the

### writof mandate sought by relator, consistent with this opinion.Chief Justice

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Mr. Justice Daniel J. Shea took no part in thisOpinion. 

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