429 Mich. 248 152 Mich App 427 394 NW2d 35 (1986) affirmed.

ATTORNEY GENERAL v PUBLIC SERVICE COMMISSION

Docket No. 78882.

Argued May 6, 1987

(Calendar No. 15).

Decided October 30, 1987.

The Public Service Commission issued orders authorizing Southeastern Michigan Gas Company to adopt a gas cost recovery clause and to establish monthly gas cost recovery factors for March, 1983, through February, 1984. The Attorney General filed a petition for rehearing thirty days after issuance of the orders, which was denied. Thirty days after the denial, the Attorney General brought an action in the Ingham Circuit Court against the mpsc, seeking review of the orders. Southeastern was permitted to intervene as a party defendant. The court, James R. Giddings, J., granted accelerated judgment for the defendants on the ground that it was without jurisdiction to consider the appeal because the appeal was not timely, stating that the running of the thirty-day period for review of an mpsc order is merely interrupted by a petition for rehearing and does not start anew when rehearing is denied. The Court of Appeals, Shepherd, P.J., and M. J. Kelly and Tahvonen, JJ., reversed and remanded the case to the circuit court for further proceedings, holding that because the action was filed within thirty days of the denial, it was timely (Docket No. 83528). The defendant appeals.

In a unanimous opinion by Justice Levin, the Supreme Court held:

A petition to the Public Service Commission for rehearing with respect to an order of the commission postpones the commencement of the running of the thirty-day period for judicial review of the order so that the period does not begin to run until the commission denies rehearing.

1. The statute providing for judicial review of a commission order prescribes that the number of days in which judicial may be brought is the same as the number of days in *249which a rehearing by the commission of its order may be requested. The full period for appeal begins to run following disposition of a petition for rehearing. Because the period in which to seek review by the commission of its order is thirty days, the period in which to seek judicial review is also thirty days, and that period begins to run anew from the time rehearing is denied.

*248References

Am Jur 2d, Appeal and Error §§ 292 et seq.

Tolling of time for filing notice of appeal in civil action in federal court under Rule 4(aX4) of Federal Rules of Appellate Procedure. 74 ALR Fed 516.

*2492. In this case, the action seeking review of the orders at issue was filed thirty days after rehearing was denied by the commission and thus was timely.

Affirmed.

152 Mich App 427; 394 NW2d 35 (1986) affirmed.

Public Utilities — Public Service Commission — Appeal of Orders.

A petition to the Public Service Commission for rehearing with respect to an order of the commission postpones the commencement of the running of the thirty-day period for judicial review of an order so that the period does not begin to run until the commission denies rehearing (MCL 460.352; MSA 22.112).

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Hugh B. Anderson and Donald E. Erickson, Assistant Attorneys General, for the plaintiff.

Don L. Keskey and Philip J. Rosewarne, Assistant Attorneys General, for the defendant.

Loomis, Ewert, Ederer, Parsley, Davis & Gotting (by Lawrence J. Gagnon and Ronald W. Bloom-berg) for the intervening defendant.

Levin, J.

A statute provides that a party dissatisfied with a rate-fixing order of the Michigan Public Service Commission may file an action seeking judicial review within thirty days "from the issuance of such order and notice thereof.”1

*250Another statute empowers the commission to grant rehearings,2 and provides that the time allowed for commencing an action to review an order of the commission "shall continue after the order denying a rehearing or made upon a rehearing, for the same number of days” provided for review of the order upon which rehearing was sought.3

The question presented is whether the filing of a petition for rehearing of an order of the mpsc merely interrupts or tolls the running of the thirty-day period allowed for review of the order, *251or, alternatively, postpones the commencement of the running of the appeal period so that the appeal period does not begin to run until the motion for rehearing is acted upon. We are persuaded that the latter construction is correct. The thirty-day period begins to run anew from the time rehearing is denied.

i

The mpsc issued two orders on June 1, 1983.4 Thirty days later, on July 1, 1983, the Attorney General filed for rehearing of both orders. Rehearing was denied three months later, on September 27, 1983. Thirty days later, on October 27, 1983, the Attorney General filed a complaint in the Ingham Circuit Court seeking review of the June 1, 1983 orders.

The mpsc moved5 for accelerated judgment, asserting that the circuit court lacked jurisdiction because this action was not filed within the thirty-day period. Southeastern was permitted to intervene.6

The circuit court granted the mpsc’s motion and dismissed this action7 on the ground that it had not been timely commenced. The court ruled that the running of the thirty-day period is merely interrupted by the filing of a petition for rehearing, and that a full thirty-day period does not start anew when rehearing is denied. Since 148 days *252had elapsed between the June 1, 1983 issuance of the orders and the October 27, 1983 commencement of this action, and excluding the eighty-eight days that elapsed between the filing for rehearing and denial, this action was commenced sixty days after issuance of the orders and not within thirty days.

The Court of Appeals reversed and remanded this cause to the circuit court for further proceedings.8 The Court held that the statute provides thirty days from the denial of a petition for rehearing to file an action in the circuit court. Since the Attorney General had filed this action within thirty days of the denial of rehearing, the action was timely commenced.9

ii

The statute provides not only that the time allowed to bring proceedings for review "shall continue” after the order denying rehearing, but that the continuation is "for the same number of days now provided by law for review of the order.”10 The additional words, "for the same number of days,” mean, we are persuaded, that the period for review continues to run for a full thirty days after a denial of rehearing.

We agree with the reasoning of the Court of Appeals:

We read this additional qualifying language as providing that the appeal period continues after *253denial of a rehearing for thirty more days, i.e., the same amount of time as the party originally had to file a complaint for judicial review. To interpret the statute as urged by defendants would be to hold that the statute means the same thing with or without the language "for the same number of days now provided by law for review of the order upon which such rehearing was denied or had.” We are not prepared to say that this language is mere surplusage in view of the rule of construction that ascribes to the Legislature an intent to give meaning to every word in a statute. [Attorney General v Michigan Public Service Comm, 152 Mich App 427, 431-432; 394 NW2d 35 (1986).]

ill

The mpsc and Southeastern rely on a dictionary definition of the word "continue” and on two cases construing that term.11 Their argument might be more persuasive if the statute stated only that the time allowed for seeking review of an order of the commission "shall continue after the order denying the hearing,”12 and did not specify that the appeal period shall continue "for the same number of days now provided for law for review of the order.”13

*254The mpsc argues that the recent amendment of the statutory provision providing the thirty-day time limit14 evidences a legislative intent to impose *255a strict thirty-day limit in the aggregate. The amendment provides for direct appeals from the mpsc to the Court of Appeals instead of to the circuit court. The appeal period both before and after the amendment is thirty days. The amendment casts no light on the constructional issue presented in the instant case.

The mpsc and Southeastern argue that the similarity between the statute governing this appeal and the statutes governing motor carrier15 and water company16 appeals favors their position. They contend that the Legislature would not have used similar language for all three statutes if it had not intended that they be construed similarly. The statutes, they claim, provide a uniform scheme governing appeals from the mpsc.17 The *256water company statute clearly favors, they assert, a tolling construction, and the motor carrier statute has been so construed. It is likely, they argue, that the Legislature also intended that a petition for rehearing under the instant statute merely toll the running of the period and not postpone the commencement of the running of the period. They add that construing the instant statute differently from the other statutes will only lead to needless confusion.18

If the three statutes were, indeed, part of a uniform scheme for dealing with mpsc appeals, that might evidence a legislative intent that the different statutes said more or less the same thing, and it might be reasonable to refer to the other statutes as guides in construing the instant statute. It does not follow that we may ignore significant differences in language.19

There is no reason to suppose that litigants will be confused if these statutes are not construed to have the same meaning. Lawyers will know whether they are handling a motor carrier, a general utility, or a water company case, and they can readily discern the different requirements for each.

The mpsc and Southeastern argue that allowing the appeal period to run anew after the period for *257rehearing has expired would be counter to the intent of the Legislature to provide for expeditious proceedings. Southeastern further argues that the effect of giving parties an additional thirty days to seek review will be to encourage them to file for rehearing when they might not otherwise do so, thus clogging the mpsc’s rehearing process.

We agree with the Court of Appeals that the additional period of time added to the appeal period — at most thirty days — is not a significant factor in the speed of review. The appeals process can, and often does, stretch on for years in mpsc cases. An additional one to thirty days is not, in that context, significant. One cannot reasonably infer from a legislative purpose to require expeditious review that tolling rather than postponement of the commencement of the running of the thirty-day review period was intended.

If there are appellants who would file a petition for rehearing solely to extend the time they have to prepare an appeal, the postponement-of-the-commencement construction of the instant statute will give them little more incentive than they would have under the tolling construction. The most extensive delay is likely to occur while the mpsc considers the petition for rehearing, which may take a number of months, as it did in this case. A party seeking to delay the proceedings gains, at most, an additional thirty days.

In this connection, we observe that it is generally considered desirable that the parties exhaust all their administrative remedies before seeking judicial review.20

iv

The mpsc and Southeastern rely on decisions of this Court to support their construction of the *258instant statute. None are on point.21 These cases construe statutes that are significantly different from the instant statute. Unlike the instant statute, none of them provide respecting the appeal period after filing for rehearing.

The mpsc and Southeastern claim that the common-law rule in Michigan has been that a petition for rehearing has no effect on the running of the appeal period unless a specific statute provides otherwise. The instant statute, in changing the common-law rule, should be construed, they argue, at most to interrupt the running of the thirty-day appeal period, and not to provide for renewed running of the thirty-day appeal period upon denial of the petition.

The "derogation of common law” canon of statutory construction is applicable when a court construes an ambiguous statute that arguably alters a common-law rule.22 In the cases cited by the mpsc and Southeastern, this Court construed statutes. That is not the same as interpreting a statute in such a manner that it conflicts with a rule of common law.

v

The mpsc and Southeastern argue that statutes in other jurisdictions have been construed to mean that a timely petition for rehearing either does not affect the appeal period at all, or, at most, interrupts its running, but does not postpone the com*259mencement of running, until the disposition of the petition for rehearing.

The mpsc reading of cases from other jurisdictions, however, is flawed. Regardless of the terminology they may employ, the majority of courts hold that the full appeal period begins to run following the disposition of a petition for rehearing.23 Only a small minority of courts have held that the filing of a petition for rehearing merely interrupts the running of the appeal period, so that, when the appeal period resumes, only the time that had not already elapsed when the petition for rehearing was filed remains at the time the petition is denied.

Some of the cases from other jurisdictions construe appeal statutes so as to allow neither interruption nor postponement.24 These cases are not on point because the instant statute clearly requires one or the other construction.

In Communist Party of Indiana v Whitcomb, 414 US 441, 444-446; 94 S Ct 656; 38 L Ed 2d 635 (1974), which concerned the constitutionality of a loyalty oath, a three-judge panel of the United States District Court for the Northern District of Indiana rendered a final order on September 28, 1972. The appellants filed a motion for reconsideration on October 3. The district court denied this motion on October 4. Appellants filed a notice of appeal on November 29. The statute provided sixty days from the entry of the final order to appeal.25 The United States Supreme Court held that the appeal was timely. "Appellant’s motion for reconsideration of October 3,” it said, "suspended the finality of the judgment of September 28 until the *260District Court’s denial of the motion on October 4 restored it. Time for appeal thus began to run from October 4 and the notice of appeal filed November 29 was timely.”

In the state courts,26 as well as in the federal courts,27 "[w]here the statute provides in general terms that the appeal or proceedings in error shall be instituted within a certain time from the rendition or entry of the judgment or decree, it is the general rule that where a motion for a new trial or rehearing is seasonably and properly made, the time is to be computed from the date of the denial of the motion . . . ,”28

*261VI

We hold that under the instant statute, a petition for rehearing postpones the running of the thirty-day appeal period, so that the appeal period does not begin to run until the mpsc has decided the motion for rehearing.

The decision of the Court of Appeals is affirmed.

Riley, C.J., and Brickley, Cavanagh, Boyle, Archer, and Griffin, JJ., concurred with Levin, J.

Attorney General v. Public Service Commission
429 Mich. 248 152 Mich App 427 394 NW2d 35 (1986) affirmed.

Case Details

Name
Attorney General v. Public Service Commission
Decision Date
Oct 30, 1987
Citations

429 Mich. 248

152 Mich App 427

394 NW2d 35 (1986) affirmed.

Jurisdiction
Michigan

References

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