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: AUG 2 2 19~ 

Filed: 'AUG 2 2 19n 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Relator appeals from the order and final judgment of the 

district court, Lewis and Clark County. The district court order 

granted the Consumer Counsel's motion to dismiss relator's 

application for writ of mandate. Judgment was entered in favor 

of the Consumer Counsel, intervenor respondent here. 

Relator is a motor vehicle common carrier operating in 

interstate and intrastate commerce. Its intrastate operations 

are conducted under certificates issued by the Montana Public 

Service Commission and under the provisions of Title 8, Chapter 

1, Revised Codes of Montana. 

On June 26, 1975, relator filed with the Public Service 

Commission its Supplement No. 6 to Commodity Tariff No. 2(A), 

specifying proposed increases in intrastate motor carrier rates 

on acid chemicals and other commodities, to be effective August 

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 to the reasonableness of the proposed increased rates. The 

Public Service Commission set the matter to be heard on November 

18, 1975. 

In its pleadings to the Public Service Commission, at the 

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 objections would be heard at the 

time set for hearing on the merits. 

On the date set for hearing, the Public Service Commission 

heard oral arguments on the objections to interrogatories, but 

declined to hear the case on its merits and postponed,the 

matter to a date and time to be set by the commission. At that 

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 relator was willing to waive the 180 day period of 

suspension. Counsel replied relator was unwilling to do so. 

The matter was never rescheduled for hearing. On December 

3, 1975 (15 days after the prior hearing and 134 days after the 

suspension order) the Public Service Commission overruled relator's 

general objections to the interrogatories. The Public Service 

Commission did not notify the parties of this action until 

January 5, 1976 (33 days after the action was taken and 167 days 

after the suspension order). The ruling purported to give 

relator until January 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 this reason we consider the interrogatories submitted 

in connection with a hearing in this proceeding as moot, 

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 letter dated January 21, 1976, the Public 

Service Commission rejected Supplement No. 7 and ordered relator: 

"* * * not to assess or collect the full amount of the 

various chemical rate increases requested * * * until 

such time as the Montana Public Service Commission 

makes a final determination as to the validity and 

lawfulness of such increase in rates. * * * 

"* * * the Commission feels the interrogatory question 

is still at issue." 

On January 28, 1976, relator filed an application for writ 

of mandate in the district court. Upon issuance of the writ of 

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 in Supplement No. 6; (2) that judgment 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 to appear 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 state a claim upon 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 can work to shut out a hearing requested by the consumer counsel it conflicts with 

out constitutional and legal provisions having to do 

with the counsel." 

The parties to this action list several issues for review. 

However, we find the central and controlling issue is whether the 

Public Service Commission is justified in refusing to accept 

for filing relator's proposed tariff schedule on the grounds 

section 8-104.5 conflicts with the Montana Constitution, 'the 

Montana Consumer Counsel Act, the Montana 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 fix rates. It shall be the 

duty ofthe board to fix, alter, regulate and determine 

just, fair, reasonable, nondiscriminatory, and sufficient rates, fares, charges, classifications, and rules - - 

of service for the operation of class A and B motor 

carriers within this state. The board also may fix and 

determine reasonable maximum or minimum tates for the 

operations of any class C motor carrier when the same 

are required for the best interests of public transportation." (Emphasis added. ) 

"8-104.2. Rate schedules, filing with board. Every class A 

or B motor - carrier holding a certificate must maintain on 

file. with the board a full and complete schedule of its 

rates, fares, charges, classifFcations, rules of service, 

and any and all tariff provisions relating to such rates, 

fares, charges, classifications, or rules. Every schedule 

on file with and approved by the board on the effective 

date of this act shall remain in full force and effect 

until changed or modified by the board or by the carrier 

with the approval of the board. 

"No change, modification, alteration, increase, or 

decrease in any rate, fare, charge, classification, or 

rule of service shall be made by any motor carrier without 

first obtaining the approval of the board. The board shall 

prescribe rules and/or regulations providing for the form 

and style of all schedules and tariffs and for the procedures 

to be followed in filing or publishing 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 

its shedule without first obtaining approval therefor 

from the board. Such changes or revisions shall be made 

by filing with the board the tariff sheet or sheets containing such changes or revisions, plainly stating the 

change or changes, or revision or revisions, to be made; 

provided further, that the public shall be 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 shall be deemed 

approved and effective thirty (30) days after the same are 

filed unless the proposed revisions or changes are suspended or disallowed by the board prior to the expiration 

of the thirty (30) day period; provided however, that 

the board may, for good cause, allow any change or revision 

to become effective on less than thirty (30) days after 

the filing thereof. Upon filing such changes or revisions, 

all tariff 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 

filed with the commission thirty (30) days after the effective 

date of such suspension. Such testimony and exhibits may 

be supplemented prior to, or at the time of hearing, and 

supplemental exhibits may be filed after the close of the 

hearing at the direction or with permission of the commission. 

"Upon its own initiative, or upon the complaint of any 

interested party filed with the board within twenty (20) 

days after the date upon which a change or revision of any 

rate, fare, charge or classification is filed with the board, 

the board may suspend the operation of such rate, fare, 

charge, or classification for a period not to exceed one 

hundred eighty (180) days, provided however that the order 

directing such suspension must be issued by the board 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 shall be 

given prompt notice by 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 shall be given an opportunity to reply 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 

will constitute notice to the participating carriers in such 

tariff. When the suspension of any proposed change or revision 

in a tariff is ordered by the board, it shall also order a 

public hearing to consider the reasonableness of the proposed 

change or revision; due notice shall be given for such 

hearing to all known interested,or affected persons and the 

same shall be allowed to appear and present evidence. After 

considering the evidence presented at such hearing, the board 

shall issue an order approving, denying, or modifying the 
proposed 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 suspension was ordered, the proposed chanp.e 

or revision shall be 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 that period the 

Public Service Commission issues a suspension otder, which may 

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

Commission is empowered to approve, deny or modify the submitted 

tariff schedules, within the suspension period, after notice 

and hearing. Unless a hearing is held 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 in the instant case, within 180 

days from the date the suspension was ordered, relator concludes 

a writ of mandate should be issued compelling the Public Ggrvice 

Commission to accept for filing, as approved and effective, 

relator's tariff schedule. 

Respondents argue "changing legal relationships in this 

case1' act to amend or modify the 180 day suspension rule in the 

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, 1972 Montana Constitution, which 

insures the right of public participation in the operation of 

state agencies prior to final decision; (2) Art. XIII, Section 2, 

1972 Montana Constitution, which establishes the office of 

Consumer Counsel for the representation of consumer interests 

before the Public Service Commission, and (3) the Montana Administrative Procedure Act as the catalysts precipitating the changing 

roles in the field of utility and transportation rate regulation. 
We believe respondents have incorrectly characterized the 

issue in this case as a conflict between statutory mandat~s and 

constitutional guarantees. The present action arose only because the Public Service Commission failed to hold a procedural 

hearing within the 180 day statutory limitation. The sole 

obstacle which confronted the Public Service Commission was a 

determination of whether or not relator was compelled to 

answer written interrogatories submitted by the Consumer Counsel. 

We fail to see how such a deterent could be the basis for the 

Public Service Commission failing to timely schedule the 

requested procedural hearing. 

The Montana legislature Eixed 180 days as the maximum 

period of suspension. It seems clear to this Court that our 

extension of that period would in effect amend the statute 

and that is a matter beyond this Court's power. Art. 111, 

Section 1, 1972 Montana Constitution; Arrow Transportation Co. 

v. Southern Railway Co., 308 F.2d 181 (1962), cert. granted 371 

U.S. 859, 372 U.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 Caurt was empowered to amend the 180 

day period of suspension, the Consumer Counsel would have no 

assurance a timely hearing would be scheduled by the Public Service Commission. Without any statutory period 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 180 day 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 is not 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, in part specifically provides: 

"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 is unfair, unjust, unreasonable, or discriminatory, it shall disallow the 

same and fix a rate, fare, charge, classification, 

or rule of service which shall be fair, just, reasonable , and nondiscriminatory, and it shall order 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 

first be given notice of the same and an opportunity 

to be heard before the board." 

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 to approve and give effect to relator's proposed 

tariff schedules, has failed to perform a clear legal duty 

arising under the Montana Motor Carrier Act. 

The order and judgment of the district court are reversed 

and the cause is remanded for issuance of the writ of mandate 

sought by relator, consistent with this opinion. 
Chief Justice 

- 

................ 

Mr. Justice Daniel J. Shea took no part in this Opinion. 

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