author: D. E. Holbrook, J.

text:
    PEOPLE v SANDS
    1. Arrest — Definition—Words and Phrases.
    An arrest is the taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act which indicates an intention to take him into custody and subjects the person arrested to the actual control and will of the person making the arrest; the act relied upon as constituting an arrest must have been performed with the intent to effect an arrest and must have been so understood by the party arrested.
    2. Arrest — Confession—Fruit of Poisonous Tree — Evidence— Probable Cause to Arrest.
    The arrest of a defendant was valid and the confession of the defendant was not the fruit of the poisonous tree and the trial judge properly admitted the confession as evidence where a review of the facts indicates that there were sufficient facts known to the police at the time of defendant’s arrest to justify a finding of probable cause to arrest the defendant.
    3. Criminal Law — Evidence—Tracking-Dog Evidence — Admissibility — Proper Foundation.
    Tracking-dog evidence is admissible in criminal cases where a proper foundation is laid which will show that: (1) the handler was qualified to use the dog; (2) the dog was trained and accurate in tracking humans; (3) the dog was placed on the trail where circumstances indicate the alleged guilty party to have been; and (4) the trail had not become so stale or contaminated as to be beyond the dog’s competency to follow it.
    References for Points in Headnotes

       5 Am Jur 2d, Arrest § 1.

       5 Am Jur 2d, Arrest § 48.
    29 Am Jur 2d, Evidence § 531.

       29 Am Jur 2d, Evidence §§ 378, 379.
    Evidence of trailing by dogs in criminal cases. 18 ALR3d 1221.

       4 Am Jur 2d, Appeal and Error § 517.
    5 Am Jur 2d, Appeal and Error § 602.

      4. Appeal and Error — Criminal Law — Evidence—Admission of Evidence — Specific Objection — Preserving Issue — Manifest Injustice — Tracking-Dog Evidence.
    A specific objection to the admission of evidence cannot be raised for the first time on appeal, absent a showing of manifest injustice; there was no manifest injustice in the admission of tracking-dog evidence although not all of the foundational requirements for the admission of such evidence were met where the evidence against a defendant was overwhelming and the admission of the testimony regarding the tracking dog could not have aided an otherwise undecided juror on the issue of the defendant’s guilt beyond a reasonable doubt.
    Appeal from Oakland, John N. O’Brien, J.
    Submitted January 5, 1978, at Lansing.
    (Docket No. 28737.)
    Decided March 20, 1978.
    Ronald L. Sands was convicted of first-degree murder. Defendant appeals.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.

      Leitman & Roeser, for defendant on appeal.
    Before: V. J. Brennan, P. J., and D. E. Holbrook and R. B. Martin, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   D. E. Holbrook, J.

On December 12, 1975, defendant was convicted by an Oakland County Circuit Court jury of first-degree murder, contrary to MCLA 750.316; MSA 28.548. On January 15, 1976, defendant was sentenced to life in prison with credit for 411 jail days served. Defendant appeals as of right.

This case arose from the murder of two attendants at a Tulsa gas station during the course of an armed robbery at approximately 6 a.m., on November 30, 1974. A recitation of the facts is important for an understanding of the issues raised upon appeal.

At 3:05 p.m., on November 30, 1974, the defendant confessed to the double homicide. On May 21, 1975, the defendant filed a motion to suppress the confession and for an evidentiary hearing. On September 24, 25, 26 and 30, 1975, the circuit court judge held an evidentiary hearing on admission of the confession pursuant to People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). On November 24, 1975, the trial court denied the motion to suppress and the confession was subsequently read into evidence at the trial.

Testimony at the Walker hearing disclosed that the bodies of the two attendants were found inside the bathroom of a Tulsa gas station. The bodies were found shortly after 6 a.m., on November 30, 1974. At 6:30 a.m., on that date, defendant was observed by a deputy sheriff entering a restaurant located about 10 to 15 minutes from the murder scene. Defendant was with three other persons: co-defendant Kowalski, Stella Kowalski and Debbie McLaughlin, the defendant’s girlfriend. The deputy sheriff, who had just finished having breakfast in the restaurant, spoke briefly to defendant on his way out. The deputy, who was aware there had been a shooting at the Tulsa gas station, mentioned it to defendant because he knew defendant had previously worked at the gas station.

Upon leaving the restaurant, the deputy sheriff drove to the Tulsa gas station to see if he could be' of any assistance. He spoke with the officer in charge, Detective Lister, and mentioned that he had just seen defendant at the restaurant. Detective Lister requested the deputy to return to the restaurant and ask defendant if he would come to the gas station so that Lister could talk with him. Lister thought that defendant was or could be a suspect.

The deputy sheriff returned to the restaurant and found defendant still sitting in a booth. The deputy approached defendant and stated that there had been a shooting at the Tulsa station. He asked defendant if he remembered Detective Lister and defendant answered "Yes”. Defendant was told that Lister would like to talk to him at the Tulsa gas station, if that was alright, and the defendant said it was fine. Together with the two women, defendant and Kowalski entered Kowalski’s car and drove to the gas station. The deputy stated that defendant was not placed under arrest and went "strictly voluntarily”. The defendant and Kowalski arrived at the Tulsa gas station shortly after 7 a.m. The defendant walked over to Lister’s police vehicle and after an initial perfunctory conversation, Lister advised the defendant of his rights, which the defendant stated he understood. Lister asked defendant if he wanted an attorney and defendant said no, because he hadn’t done anything. Lister asked the defendant if he would waive his rights not to answer questions, and defendant said, "Yes”. Lister then asked him what his movements were "from midnight on”. This questioning, to which defendant responded, lasted until approximately 7:15 a.m. After defendant gave an exculpatory story, he was told that he was free to go. They all remained at the gas station until 8 a.m. At this time, officers noticed that one of the girls with the defendant had work gloves in her purse which were identical to those sold in the Tulsa station. Also, another similar glove was found on the floor of the car in which defendant rode. While the defendant was at the gas station, the sheriffs department towed the car in which defendant had ridden to the police station for having improper plates. Lister then offered the defendant and his friends a ride to the police station so they could make a telephone call in order to get a ride home.

Prior to defendant’s arrival at the gas station, a tracking dog had led officers from the gas station to a parking lot located near the station where fresh tire tracks and footprints were observed in the snow. Some oil spots or drippings were also observed in the snow. After defendant and his friends arrived in their car, the officers noticed similarities between the car’s tire tracks and oil drippings and those previously observed in the snow at the parking lot.

While at the police station, Lister asked Stella Kowalski and Debbie McLaughlin some questions. At or about 9 or 9:30 a.m., Lister told the individuals they could go. They told Lister that they were going to a nearby restaurant. At no time did the officer tell defendant he was under arrest.

After defendant and his friends left, Detective Lister spoke with the chief assistant prosecutor for Oakland County. Following this conversation, Lister requested that Officer Mercer go to the restaurant where defendant and Kowalski had said they were going and bring them back for further questioning. Officer Mercer went to the restaurant and told Kowalski and Sands that Detective Lister would like to talk with them. Officer Mercer testified that as far as he was concerned, defendant had a choice in deciding whether or not to go to the police station and that defendant voluntarily went with him.

When defendant and Kowalski arrived at the police station, they were ushered into a report writing room and asked to have a seat until Detective Lister returned. The officer told them that there was coffee in the back, as well as a restroom. Officer Mercer then left the police station. Apparently there was no one, other than Kowalski, defendant and the dispatcher, at the police station at this time.

Detective Lister returned to the police station around 11:30 or 12 o’clock. Detective Lister testified that he advised defendant of his rights and questioned him. Lister also testified that defendant "wasn’t officially arrested”, but "was being held for questioning”. "He wasn’t free to leave. He was there for interrogation purposes.”

At 1:45 p.m., defendant gave a statement in the presence of the chief assistant prosecutor, Detective Lister and a court reporter. Prior to giving this statement, defendant was advised of his Miranda rights. The defendant denied involvement in the crime and he was then taken back to the room where he had been waiting. During the next 45 minutes to an hour, the codefendant Kowalski and Kowalski’s sister were questioned. During this 45-minute period, the defendant agreed to submit to a nitrate test. However, the nitrate test was never sent in for analysis because the test was conducted too long after the crime for the results to be reliable.

After the questioning of Kowalski and Kowalski’s sister, defendant indicated that he wanted to see the chief assistant prosecutor. At 3:05 p.m., the chief assistant prosecutor took the defendant’s 25-minute stenographically recorded confession. Lister and the Pontiac Township police chief, Robert Rayner, were also present.

Defendant in his confession detailed the planning of the robbery and the intent to kill the attendants after getting the money. Defendant explained how he and Kowalski parked in the cement company’s parking lot and approached the station carrying an 8mm lever action sniper rifle. After getting the money, he stated how he ordered the victims into the bathroom and repeatedly shot them as they tried to talk him out of it. Defendant said he shot the victims because he had worked with them before and they could identify him. The defendant presented no witnesses on his behalf at the trial.

At the trial of this cause, testimony was introduced that the bodies of the two attendants were found by a customer around 6 a.m. The victims were found lying on the floor of the men’s bathroom with the top of their heads "blown off”. A witness who lived directly across from the gas station testified that she had heard 3 distinct sounds, similar to small explosions, around 6 a.m. on November 30.

Debra McLaughlin, the girl with whom defendant was living at the time, testified that about 4 or 5 a.m., on the morning in question, defendant left their home in the company of Kowalski. She testified that defendant left the house carrying a rifle. Ms. McLaughlin further stated that defendant and Kowalski returned around 6 a.m. and told her to go into another room while they carried on a conversation. Shortly thereafter, before leaving for a nearby restaurant, defendant told her that he had $900 in the attic if she needed any money.

An audit of the Tulsa gas station disclosed that $1,275.81 including checks was missing from the safe. Deputy Donald McLaughlin, employed by the Oakland County Sheriffs Department Crime Laboratory, testified that he found a metal jacket of a fired bullet on the floor of the gas station. Pursuant to a search warrant, he found four fired UMC 8mm Lebel cartridge cases in the living room of Ms. McLaughlin’s home. Also, an 8mm Lebel caliber rifle was found in the closet. As a ballistics expert, he testified that the shell casing found at the gas station had been fired from the rifle found in the closet. Also found pursuant to the search warrant was $872 in plastic sandwich bags located in the rafters above a trap door in the bedroom. Also, the victims’ payroll checks, along with other checks from the Tulsa station, were discovered under a blanket in the same bedroom.

Apparently, sometime during the questioning of the defendant at the police station, his shoes were taken from him to see whether or not they would match the footprints found in the snow near the crime scene. A police officer testified that the shoes had the same size and pattern as the footprints in question.

The defendant was not placed under arrest on the day in question until around 4 or 5 p.m.

The defendant first raises two procedural issues, neither of which merits a reversal or remand.

The main issue defendant raises on appeal is whether the defendant’s confession should have been suppressed as the fruit of the poisonous tree. Defendant asserts that since he was arrested without a warrant and without probable cause, his confession was therefore illegal and inadmissible in evidence as the fruit of a poisonous tree.

In order to analyze this issue, we must first determine if and when the defendant was arrested.

A definition of an arrest was made in People v Gonzales, 356 Mich 247, 253; 97 NW2d 16 (1959), wherein the Court, quoting from 4 Am Jur, Arrest, § 2, stated as follows:

" 'An arrest is the taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act which indicates an intention to take him into custody and subjects the person arrested to the actual control and will of the person making the arrest. The act relied upon as constituting an arrest must have been performed with the intent to effect an arrest and must have been so understood by the party arrested.’ ”

See also, Dixon v Shiner, 12 Mich App 573, 582; 163 NW2d 481 (1968).

Applying this definition to the instant case, we find that defendant was not under arrest until his questioning in the afternoon on November 30, 1974. A review of the facts supports this view.

When the defendant gave his first statement at 1:47 p.m., the facts indicate that he was under arrest at this time. Detective Lister admitted that although defendant was not officially under arrest at the time of his statement, he was not free to leave. Additionally, his shoes were removed from him and a nitrate test was administered to his hands. These facts indicate that the defendant was under arrest as defined by Gonzales.

In order to determine whether or not the defendant’s arrest at this time was legal, we must determine whether or not there was probable cause for his arrest. People v Wolfe, 5 Mich App 543, 552; 147 NW2d 447 (1967). Our review of the facts indicates that there were sufficient facts known to justify a finding of probable cause at this time. Thus, the arrest was valid and the confession of defendant was not the fruit of the poisonous tree. Therefore, the trial judge properly admitted the confession in evidence.

We feel the following facts were sufficient to establish probable cause. The oil stains and tire tracks at the scene of the crime matched those of the car in which defendant was riding. Also, officers observed a work glove in the car in which defendant was riding and a pair of work gloves were seen in the purse of one of the women who accompanied defendant. These work gloves were identical to the work gloves that were sold at the gas station. The defendant was observed shortly after the crime was committed at a restaurant within ten minutes from the scene of the crime. Additionally, the police knew that the defendant had previously worked at the station and two weeks prior had taken $1,400 from the station for which he had lost his job.

The trial judge held at the evidentiary hearing as follows:

"Thank you gentlemen, for a very thorough treatment of this somewhat gray area. Let me say, first of all, that I do not find an illegal arrest here, under all of the attendant circumstances that have been presented, and analyzing the hours and moments surrounding preceding the giving of the statement that occurred with regard to these two respondents.”

The ruling of the trial judge was not clearly erroneous and is upheld by this Court.

We have ruled that the arrest was legal and proper and that defendant’s confession was properly admitted. We find that the trial judge committed no error.

Next, defendant asserts that the admission of the testimony relating to the use of the police tracking dog was reversible error. The defendant does not challenge the Michigan rule that tracking dog evidence is admissible. People v Harper, 43 Mich App 500, 508; 204 NW2d 263 (1972), Iv den, 389 Mich 759 (1973), People v Norwood, 70 Mich App 53, 55; 245 NW2d 170 (1976). Instead, the defendant maintains that the foundation laid by the prosecutor was improper.

Before tracking-dog evidence is admissible, the prosecution must establish four conditions which provide a proper foundation. The conditions are:

"(1) [T]he handler was qualified to use the dog; (2) the dog was trained and accurate in tracking humans; (3) the dog was placed on the trail where circumstances indicate the alleged guilty party to have been; and, (4) the trail had not become so stale or contaminated as to be beyond the dog’s competency to follow it.” Harper, supra, at 508.

Also see, Norwood, supra, at 55.

The people admit that not all the foundational requirements were met in the instant case, however, the people assert that this does not require reversal of defendant’s conviction. We agree. Defendant made no objection at trial or thereafter until appeal, and absent a showing of manifest injustice, specific objection to the admission of evidence cannot be raised for the first time on appeal. People v Alexander, 72 Mich App 91, 99; 249 NW2d 307 (1976). We find no manifest injustice. The evidence against the defendant was overwhelming and the admission of the testimony regarding the tracking dog could not have aided an otherwise undecided juror on the issue of defendant’s guilt beyond a reasonable doubt. People v Swan, 56 Mich App 22, 33; 223 NW2d 346 (1974).

Affirmed.

       Detective Lister and the defendant had met previously in regard to an investigation of a theft of $1,400 from this Tulsa station. Defendant had admitted to Lister that he had stolen the money and was going to pay it back to the owner. The defendant had been dismissed from his job at the Tulsa station because of this theft.

       Lister testified that the first time he had a conversation with the defendant, the latter indicated that he had picked up his girlfriend (Debbie McLaughlin) at midnight from Knapp’s Restaurant. They drove to her home in Utica which she shared with the Kowalskis and went to bed. Sands indicated that he had slept until about 3 a.m., when he woke up for a cigarette and then went back to sleep and finally awoke about 6 a.m. on the day that the bodies were found. The codefendant awakened him to have breakfast and all four went to the Flame Restaurant in the codefendant’s car because the defendant’s car was broken down.

        Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).


source: Caselaw Access Project

author: M. J. Kelly, J.

license: Public Domain

text:
    STATE, ex rel DIRECTOR OF THE MICHIGAN DEPARTMENT OF NATURAL RESOURCES v CHIPPEWA LANDING
    1. Administrative Law — Department of Natural Resources — Delegation of Rule Making Authority — Statutes.
    The act in which the Legislature delegates to the Department of Natural Resources the authority to promulgate rules regulating the use of lands and property under its control, other than state parks and recreation areas, is constitutional, and the rules promulgated under it are valid (MCLA 299.1 et seq.; MSA 13.1 et seq.).

      2. Courts — Court of Appeals — Case Precedent.
    A panel of the Court of Appeals is not bound by a decision of another panel of the Court, nor is the Court of Appeals bound by prior case law which is no longer considered viable.
    Appeal from Ingham, Jack W. Warren, J.
    Submitted April 12, 1977, at Lansing.
    (Docket No. 29871.)
    Decided March 20, 1978.
    Complaint by the State of Michigan, on the relation of the Director of the Michigan Department of Natural Resources, against Chippewa Landing, Charles H. Miltner, proprietor and owner, and others for injunctive relief preventing the defendants from continuing to use state lands in violation of an administrative regulation. Summary judgment for defendants. Plaintiff appeals.
    Reversed and remanded.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Thomas J.

      Emery, Assistant Attorney General, for the plaintiff.

      References for Points in Headnotes

       2 Am Jur 2d, Administrative Law §§ 289-314.

       20 Am Jur 2d, Courts §§ 186, 231.

      Willingham, Coté, Hanslovsky, Griffith & Fores-man, P. C., for defendants.
    Before: R. M. Maher, P. J., and M. J. Kelly and J. J. Kelley, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   M. J. Kelly, J.

This appeal is limited to a review of the constitutionality of MCLA 299.1 et seq.; MSA 13.1 et seq., and certain rules of the Department of Natural Resources promulgated under its authority.

Under MCLA 299.1 et seq.; MSA 13.1 et seq., the Department of Natural Resources has acquired lands, or rights in lands, fronting or abutting on boatable waters within Michigan. There are about 250 access sites in the state. Twenty-three of the sites, including access sites and state forest campgrounds with river access, exist along the Pere Marquette River in Lake County, Pine River in Lake County, Manistee River in Crawford and Kalkaska Counties, Au Sable River in Crawford and Oscoda Counties, and the south branch of the Au Sable in Crawford County. These sites are the subject of the instant controversy.

The department promulgated rules for the use of state lands other than state parks and recreation areas by the authority granted under MCLA 299.1 et seq.; MSA 13.1 et seq., and provisions of the Michigan Administrative Procedures Act, MCLA 24.231-24.264; MSA 3.560(131)-3.560(164). The rules were filed with the Secretary of State on June 9, 1972, and became effective 15 days later.

The rule challenged here is 1972 A ACS, R 299.331 of the State Administrative Code. The rule restricts the period of time persons can leave boats, fishing shanties, or other items of personal property upon state lands, and restricts the use of state lands for business or commercial purposes without proper written permission.

Defendants are in the business of renting canoes on boatable waters in Michigan. They did not apply for permits to use public access sites.

On August 16, 1973, the department filed this action in Ingham County Circuit Court. The department alleged that defendants’ use of the access site to store their canoes was a commercial use, one which frequently interfered with the use of the sites by other members of the public, and that defendants lacked permits from the department. The department sought temporary and permanent injunctive relief to prevent defendants from continuing to use the state lands in violation of rule 299.331.

On May 28, 1974, the defendants’ motion for summary judgment was denied by the court although apparently no formal order was entered.

On June 2, 1975, the circuit court entered an order of preliminary injunction against the defendants. Specifically, the defendants were enjoined and restrained from storing, stacking or in any way leaving any boat, canoe, or other property upon state owned or administered lands for a period in excess of 48 hours.

The defendants filed a second motion for summary judgment which was brought on for hearing on July 16, 1976. Following that hearing the court granted defendants’ motion for summary judgment, and plaintiffs appeal that ruling.

The trial court based its ruling on the decision of this Court in Westervelt v Natural Resources Commission, 62 Mich App 539; 233 NW2d 640 (1975), lv granted, 395 Mich 765 (1976). It held that the Department of Natural Resources lacked the authority to promulgate or enforce the rules and regulations which it had attempted to assert as binding upon the defendants.

Factually, the Westervelt case is very similar to the instant case. Noting that the act, MCLA 299.1-299.3; MSA 13.1-13.3, was adopted to help protect and conserve the natural resources of Michigan, the Westervelt panel stated:

"The act, however, provides no specific method by which the department is to effectuate this purpose nor does it even indicate what types of procedures are contemplated. The act attempts to delegate complete control of this area of state concern to the Department of Natural Resources without providing the agency with any workable standards by which it is to be guided in the performance of its task, as is required by present Michigan law.” (Emphasis added.) 62 Mich App at 544.

The court observed that the so-called nondelegation rule has been criticized and may be changed by our Supreme Court. 62 Mich App at 544, n 1, citing Davis, Administrative Law Treatise, §§ 2.07 and 2.09, pp 102 and 108-109, People v Fields (On Rehearing), 391 Mich 206, 224-252; 216 NW2d 51 (1974) (Justice Levin’s dissenting opinion), overruled in part in a recent opinion, People v Peters, 397 Mich 360-369; 244 NW2d 898 (1976). The Westervelt Court ultimately held that the statute delegated rule-making power to the Department of Natural Resources in an impermissible manner. Section 3a of the statute was notably not discussed, however.

There is no indication in the Westervelt opinion of why the panel refrained from reviewing § 3a of this challenged statute. Section 3a provides in part:

"The commission of conservation shall make such rules for protection of the lands and property under its control against wrongful use or occupancy as will insure the carrying out of the intent of this act to protect the same from depredations and to preserve such lands and property from molestation, spoilation, destruction or any other improper use or occupancy.” MCLA 299.3a; MSA 13.4.

This section also provides that the rules will be promulgated in accordance with the Administrative Procedures Act of 1969, MCLA 24.201 et seq.; MSA 3.560(101) et seq.

More than a year after Westervelt was decided by the Court of Appeals, another panel of the Court in Michigan Oil Co v Natural Resources Commission, 71 Mich App 667; 249 NW2d 135 (1976), lv den, 399 Mich 892 (1977) (Justice Levin would grant leave to appeal), discussed the scope of the authority of the Department of Natural Resources to regulate utilization and conservation of all the state natural resources under the challenged statutory sections. The Westervelt holding that the statutory sections were unconstitutional was not mentioned by the Court. The Court recognized and upheld without comment the department’s authority to promulgate rules and regulations under the challenged sections. The Court also stated:

"While we approve of administrative agencies demonstrating a degree of flexibility in perceiving and reacting to new problems or dealing with past mistakes, the procedural safeguards contained in the Administrative Procedures Act, MCLA 24.201 et seq.; MSA 3.560(101) et seq., must also be recognized as the public’s first defense against arbitrary agency action.” 71 Mich App at 694-695.

This case was argued in April of 1977. We were under the impression that the Supreme Court was on the very brink of issuing its decision in Westervelt. At each succeeding conference of the Supreme Court we have anticipated the issuance of its opinion and have been disappointed. We elect to delay no longer but issue this opinion on our surmise of what the Supreme Court will do in Westervelt. We apprehend with Professor Kenneth Culp Davis that a legislature may delegate to some extent to an administrative body significant rule-making powers though the exercise thereof amounts to law making. "Workable standards” should no longer be the exclusive focus for determining the validity of delegation statutes. The emphasis should be on safeguards. See generally Davis, Administrative Law Text (3d ed), §§ 2.06-2.10, pp 36-52. Professor Davis suggests:

"Five principal steps should be taken to alter the non-delegation doctrine and to move toward a system of judicial protection against unnecessary and uncontrolled discretionary power: (a) the purpose of the non-delegation doctrine should no longer be either to prevent delegation or to require statutory standards; the purpose should be the much deeper one of protecting against unnecessary and uncontrolled discretionary power; (b) the exclusive focus on standards should be shifted to an emphasis more on safeguards than on standards; (c) when legislative bodies have failed to provide standards, the courts should not hold the delegation unlawful but should require that the administrators must as rapidly as feasible supply the standards; (d) the non-delegation doctrine should gradually grow into a broad requirement extending beyond the subject of delegation — that officers with discretionary power must do about as much as feasible to structure their discretion through appropriate safeguards and to confine and guide their discretion through standards, principles, and rules; (e) the protection should reach not merely delegated power but also such undelegated power as that of selective enforcement.” Supra at 43.

We hold the instant statute constitutional, and the rules promulgated under it valid. In so holding we are, in effect, speculating that the Supreme Court will reverse Westervelt, supra. 395 Mich 765. The Westervelt court ruled that the instant statute was unconstitutional for lack of "workable standards”. We are not bound by the decision of another panel of this Court, nor are we bound by prior case law that is no longer considered viable. Topps-Toeller, Inc v City of Lansing, 47 Mich App 720, 730; 209 NW2d 843 (1973), lv den, 390 Mich 788 (1973).

Reversed and remanded for trial.

       On the date that this opinion was decided the Supreme Court did in fact reverse Westervelt. Westervelt v Natural Resources Commission, 402 Mich 412; 263 NW2d 564 (1978).


author: R. B. Burns, J.

text:
    PEOPLE v SPARKS
    1. Criminal Law — Defendant’s Statements — Voluntariness—Miranda Rights — Waiver—Appeal and Error.
    The Court of Appeals, in reviewing the correctness of a lower court’s determination that a defendant had knowingly and intelligently waived his Miranda rights and voluntarily gave statements to the police without the inducement of promises of leniency, will affirm such determination unless they are left with a definite and firm conviction, after they examine the entire record and make an independent determination of voluntariness, that the trial judge erred.
    2. Criminal Law — Police Interrogation — Right to Counsel— Waiver — Significant Period of Time.
    Police interrogation of a person must cease when the person asserts his right to counsel until an attorney is present, or, after the lapse of a significant period of time, the person knowingly and intelligently waives his right to counsel.
    3. Criminal Law — Police Interrogation — Right to Counsel — Miranda Requirements — Court of Appeals — Harmless Error— First-Degree Murder.
    A police officer’s continued interrogation of a defendant after he asserts his right to counsel violates the clear Miranda requirement that interrogation must then cease until an attorney is present; the Court of Appeals may find in a trial for first-degree murder that the admission of statements thus obtained was harmless beyond a reasonable doubt where the statements were not materially different either from those given to another officer after the defendant had waived his right to counsel or from his testimony at trial.

      References for Points in Headnotes

       Custodial interrogation: what constitutes "custodial interrogation” within rule of Miranda v. Arizona requiring suspect be informed of his Federal constitutional rights before custodial interrogation. 31 ALR3d 565.
    Necessity of informing suspect of rights under priviledge against self-incrimination, prior to police interrogation. 10 ALR3d 1054.

       65 Am Jur 2d, Rape § 1.

       21 Am Jur 2d, Criminal Law § 165 et seq.

    40 Am Jur 2d, Homicide §§ 190, 193, 194.

      4. Rape — Common Law — Carnal Knowledge.
    Common-law rape has been defined as the carnal knowledge of a woman by force and against her will.
    5. Criminal Law — First-Degree Murder — Felony Murder — Double
    Jeopardy — Constitutional Law.
    A defendant’s conviction of first-degree premeditated murder and first-degree felony murder violates his double jeopardy protection where there was only one murder and hence one crime (Const 1963, art 1, § 15).
    Appeal from Allegan, George R. Corsiglia, J.
    Submitted February 9, 1978, at Grand Rapids.
    (Docket No. 30188.)
    Decided March 20, 1978.
    Roger R. Sparks was convicted of first-degree premeditated murder and first-degree felony murder. Defendant appeals.
    Affirmed in part, reversed in part.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Fred R. Hunter, III, Prosecuting Attorney, and Thomas C. Nelson, Assistant Attorney General, for the people.

      Wickett, Erickson, Bartl & Haslett, P. C., for defendant.
    Before: J. H. Gillis, P. J., and R. B. Burns and Allen, JJ.
   R. B. Burns, J.

Defendant was convicted by a jury of one count of first-degree premeditated murder and one count of first-degree felony murder, MCLA 750.316; MSA 28.548, and appeals. We affirm in part and reverse in part.

At about 10:15 p.m. on December 22, 1975, Deborah Knapp borrowed her brother’s car and left her mother’s home in South Haven, Van Burén County, to go to a grocery store for potato chips. She did not return home. The following morning her body was found in Allegan County, nude except for socks and shoes, and with multiple stab wounds. That same morning the car was found submerged in the Black River in South Haven, with some of her clothing in the car.

Defendant lived with his wife in South Haven in the home of his mother-in-law, Mrs. Patton. Mrs. Patton went to the South Haven State Police Post in the afternoon of December 23, and told police that when defendant arrived home at 1 a.m. that morning his jacket, clothes and shoes were bloody. Defendant had explained that he was with Steve Pratt, had hit a dog, picked it up, taken it to its owner, and helped bury it. When contacted, Steve Pratt said he was not with defendant. The blood was determined to be human.

Various statements by defendant were admitted at trial. A Walker hearing was held to determine the voluntariness of these statements, at the conclusion of which the trial court determined that defendant had knowingly and intelligently waived his Miranda rights, and his statements were given voluntarily without the inducement of promises of leniency. On review, we are to examine the entire record and make an independent determination of voluntariness. Unless we are left with a definite and firm conviction that the trial judge erred, we are to affirm. See, e.g., People v McGillen #1, 392 Mich 251, 257; 220 NW2d 677, 679 (1974).

Defendant was arrested at 4:45 p.m. on December 23 in Hartford by Trooper Dell. Trooper Dell read defendant his rights and asked defendant whether he wished to waive them. As to whether he wanted an attorney, defendant said "It looks like I’m going to need one”, and defendant also indicated he wished to remain silent. Trooper Dell then drove defendant to the South Haven State Police Post without speaking to him, arriving at approximately 5:10 p.m. Defendant was taken to see Detective Rank who read defendant his rights. Defendant waived his rights, and gave approximately the same story to Detective Rank that he had given his mother-in-law. However, later in the evening, after having seen his wife, father, and mother-in-law, and having again been advised of his rights and having waived them, defendant told Detective Karsen that he had been with the victim, had engaged in intercourse with her and had struck her, but denied raping her or stabbing her to death.

Defendant repeated substantially the same story he had given Detective Karsen to Detectives Ross and Waldron on December 24 and 26. Before each session he was advised of his rights and waived them. However, at one of these sessions, Ross called defendant a liar, and defendant became angry and said "I don’t want to talk to anybody, I want to see a lawyer”. Waldron spoke to Ross, who went elsewhere in the partitioned room. Defendant then started talking about an unrelated subject, but Waldron swung the conversation around to the killing.

Detective Karsen obtained approximately the same statement from defendant again on December 30. Prior to questioning, Detective Karsen had defendant recite his rights, and asked if he would talk without an attorney or someone else present. Defendant assented. When asked if he had an attorney, defendant said no; Detective Karsen then asked if defendant wanted to talk to an attorney and defendant said he did, but he would talk to Karsen without an attorney present.

Defendant argues that all of his statements were inadmissible because they were obtained after he asserted his right to counsel to Trooper Dell and Detectives Ross and Waldron. In Miranda v Arizona, 384 US 436, 474; 86 S Ct 1602, 1628; 16 L Ed 2d 694, 723; 10 ALR3d 974, 1011 (1966), the Supreme Court wrote:

"If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.”

Read literally, this passage would seem to indicate that defendant should never have been questioned after his initial assertion of his right to counsel to Trooper Dell, since he was not provided with an attorney. However, the Supreme Court also wrote in Miranda:

"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” 384 US at 475; 86 S Ct at 1628; 16 L Ed 2d at 724; 10 ALR3d at 1011.

Does this latter passage apply where defendant has already requested an attorney?

Although the Supreme Court explicitly distinguished the instant situation in Michigan v Mosley, 423 US 96; 96 S Ct 321; 46 L Ed 2d 313 (1975), the Court’s reasoning in Mosley is helpful in resolving the instant ambiguity. In Mosley the Supreme Court interpreted the Miranda requirement that the interrogation must cease when an individual asserts his right to remain silent. The Court observed that the passage could be read as permitting resumption of interrogation after a momentary respite, but that such interpretation would permit continuing interrogation to undermine the will of the person being interrogated. At the other extreme, the passage could be read as requiring that interrogation never resume, which would frustrate legitimate police activity and the person’s right to subsequently waive his right to remain silent. The Court determined the critical issue to be whether the person’s right to cut off questioning was scrupulously honored.

The instant passage cannot be read as permitting resumption of interrogation after a momentary respite, for that would do violence to the language requiring the interrogation to "cease until an attorney is present”. However, the passage may be read as permitting a later interrogation after the passage of a significant period of time. To hold that the counsel right can never be knowingly and intelligently waived after having previously been asserted would tend to frustrate legitimate police activity and defendant’s right to speak without the aid of counsel. We therefore hold that, when a person asserts his right to counsel, the interrogation must cease until an attorney is present, or, after the lapse of a significant period of time, the person knowingly and intelligently waives his counsel right. See, e.g., United States v Pheaster, 544 F2d 353, 367-368 (CA 9, 1976).

Although we find a very close question as to whether defendant’s waiver of his right to counsel to Detective Rank was knowing and intelligent, due to the relatively short period of time between defendant’s assertion of his right to Trooper Dell and its subsequent waiver, we are not left with a definite and firm conviction that the trial court erred. People v McGillen, supra. Defendant’s statement that it looked like he was going to need an attorney was sufficiently equivocal to raise a doubt as to whether he in fact believed he needed an attorney; Trooper Dell scrupulously honored his right to cut off questioning and did not speak to him on the trip to the State Police Post; the subsequent waiver was to a different person at a different location; there was no evidence that psychological pressure was brought to bear to induce the waiver; and the warnings were repeated prior to the waiver. Defendant’s initial statement was substantially the same as that given to his mother-in-law, which suggests an intelligent decision that he could make a non-damaging statement without the aid of an attorney. All truly damaging statements given on December 23 came after defendant had been given his rights three times by police and his father had told him not to talk until after he had seen a lawyer. The prosecution carried its heavy burden of showing knowing and intelligent waiver.

Detective Waldron’s continuing interrogation after defendant asserted his right to counsel violated the clear Miranda requirement that the interrogation must cease until an attorney is present.

Prior to taking defendant’s statement on December 30, Detective Karsen carefully ascertained exactly what defendant desired with reference to his right to counsel. There is no indication that defendant’s waiver was the product of the now repeated failure of the police to honor his request for counsel. Although this issue also presents a close question, we again are not left with a definite and firm conviction that the trial court erred. People v McGillen, supra.

It is unclear at which interview and at which point in the interviews with Detectives Ross and Waldron defendant asserted his right to counsel. However, his statements to them were not materially different from those given to Detective Karsen or from his own testimony at trial. Thus, whatever ought to have been excluded was cumulative, and its admission harmless beyond reasonable doubt.

Defendant also argues that the statements were involuntary because he was led to believe that he would obtain leniency and psychiatric treatment in exchange for them. Cf. People v Pallister, 14 Mich App 139; 165 NW2d 319 (1968). Although there is some testimony to support defendant’s argument, the trial court found more credible testimony that no promises were made from which defendant could have inferred he would receive leniency and treatment in exchange for the statements. We are not left with a definite and firm conviction that the trial court erred. People v McGillen, supra.

Defendant also argues that the admissions were obtained as a result of an illegal arrest. The trial court took the issue under advisement, and the list of docket entries in the lower court record indicates that further testimony was taken on this issue, arguments heard, and the issue resolved against defendant by the trial court. Since we have not been supplied with a transcript of this later proceeding by defendant, GCR 1963, 812.2, we have nothing to review, and do not reach the merits of this issue.

MCLA 750.316; MSA 28.548 reads:

"All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.” (Emphasis added.)

As previously noted, defendant was found guilty of both premeditated murder and felony murder.

Common-law rape has been defined as "the carnal knowledge of a woman by force and against her will”. People v Crosswell, 13 Mich 427, 432 (1865).

MCLA 750.520; MSA 28.788 provided in part:

"Any person who shall ravish and carnally know any female of the age of 16 years, or more, by force and against her will, or who shall unlawfully and carnally know and abuse any female under the full age of 16 years, shall be guilty of a felony * * * .”

The above statute has been repealed, 1974 PA 266, § 3, and in its place we have MCLA 750.520b; MSA 28.788(2) which defines criminal sexual conduct in the first degree. The definition includes sexual penetration with another person where:

"(e) The actor is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon.
"(i) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration.”

This section does not necessarily require that sexual penetration be accomplished by force. It does not require the actor, armed with a weapon, to use the weapon in order to accomplish sexual penetration.

A person could be guilty of criminal sexual conduct in the first degree who would not have been guilty of rape under the prior statute.

In the present case it is not necessary to rule on this particular question but we mention the conflict to alert the Legislature and the profession of a possible conflict.

Defendant’s conviction of first-degree premeditated murder and first-degree felony murder violates double jeopardy protection. Const 1963, art 1, § 15. There was only one murder and hence one crime, albeit several of the aggravating factors which make a murder first-degree murder were present in the instant case. MCLA 750.316; MSA 28.548. There was sufficient evidence of premeditation to sustain the conviction. The felony murder conviction is reversed.

Defendant’s other assigned errors are either without merit or moot.

Affirmed in part, reversed in part.

        People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

        Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).


author: Beasley, J. V. J. Brennan, J.

text:
    EARLE v COLONIAL THEATRE COMPANY EARLE v MIDWEST THEATERS COMPANY
    Opinion of the Court
    1. Negligence — Business Invitees — Duty of Reasonable Care— Standard of Care — Jury Question.
    A person conducting a business undertakes certain duties regarding business invitees, one of which is the duty to use reasonable care for the safety of an invitee; once such a duty has been established, it is for the jury to determine the specific standard of care applicable.
    2. Motions — Directed Verdict — Jury Question.
    Denial of a motion for a directed verdict is proper where the motion is grounded upon a request that the trial court decide questions which are properly for the jury. ■
    3. Appeal and Error — Instructions to Jury — Manifest Injustice.
    The court of Appeals will review a trial court’s instructions to the jury only upon a showing of manifest injustice where the instructions were not objected to at trial.
    Dissent by V. J. Brennan, J.
    4. Negligence — Business Invitees — Duty of Reasonable Care — Unforeseeable Harm — Directed Verdict.

      The owner of a theatre owes a duty of reasonable care toward the theatre’s patrons, but that duty does not extend to the type of unforeseeable harm to a patron resulting from an unprovoked attack by a stranger; therefore, as a matter of law the theatre

      owner should not be held responsible for such harm, and the defendant owner is entitled to a directed verdict.

      References for Points in Headnotes

       57 Am Jur 2d, Negligence §§ 6, 36, 37, 79. 62 Am Jur 2d, Premises Liability, §§ 62-68.

       75 Am Jur 2d, Trial § 476. Motion by . each party for directed verdict as waiving submission of fact questions to jury. 68 ALR2d 300.

       5 Am Jur 2d, Appeal and Error § 891.

       57 Am Jur 2d, Negligence §§ 138, 163.

      Appeal from Wayne, Thomas J. Foley, J.
    Submitted October 4, 1977, at Detroit.
    (Docket Nos. 30195, 30196.)
    Decided March 20, 1978.
    Leave to appeal applied for.
    Complaints by Steven Earle against Colonial Theatre Company and Midwest Theaters Company for damages for injuries received when plaintiff was attacked in a theatre. The cases were consolidated for trial. Judgment for plaintiff. Defendants appeal.
    Affirmed.

      August, Thompson, Sherr & Miller, P. C. (by Paul D. Sherr and Ellen J. Alter), for plaintiff.

      Seth H. Barsky and Faintuck, Shwedel, Roether, Wolfram, McDonald & Zipser, for defendants.
    Before: D. F. Walsh, P. J., and V. J. Brennan and Beasley, JJ.
   Beasley, J.

On August 23, 1972, while a patron in the now closed Colonial Theatre on the edge of downtown Detroit, plaintiff was shot in the right ear in an unprovoked attack by a stranger. Although suffering serious injury and loss of hearing in one ear, plaintiff recovered and sued defendant for damages, claiming defendant did not exercise reasonable care for his safety. Specifically, plaintiff offered evidence of previous criminal activity in or about the theatre and asserted defendants were thus placed on notice of an unreasonable risk of harm to patrons which imposed a duty on defendants to maintain armed security guards for the safety of paying patrons.

The jury returned a verdict of $40,000 for plaintiff. Defendants appeal as of right.

Defendants say that while crime has, unfortunately, become such a way of life as to be generally foreseeable, this does not mean that all businesses have a duty to hire armed guards to protect customers. Defendants say this Court should determine, as a matter of law, that defendants had no duty to maintain armed guards.

In this connection, defendants urge that we consider the economic effect of a holding (albeit by jury verdict) that businesses in high crime areas have a duty to maintain armed guards to secure the safety of patrons and other business invitees. We are not only mindful of this economic effect, but we also are aware that "high crime areas” exist not only in the large cities, but also in the suburbs and many medium-sized cities throughout the state.

Nevertheless, it is also clear that defendants, in conducting their business, undertook certain duties regarding business invitees. Among other things, the court instructed the jury as follows:

"Now, in considering whether there was an act of negligence, the law provides that when a person is invited on the premises of a business he is a business invitee, and the person doing the inviting has a certain duty to that individual. That duty is, in this state, to use reasonable care for the safety of that person. Now, it is going to be up to you to determine what are the requirements of using reasonable care for the safety of the Plaintiff * * *

As stated by the court, once such a duty is established, it is for the jury to determine the specific standard of care applicable. In this case, presumably the jury did determine the specific standard of care required of this theatre owner. Under present law, that determination must be affirmed. In addition, we find no error in the denial of defendants’ motion for a directed verdict since that motion was also grounded upon a request that the trial court decide questions which, as has already been discussed, were properly for the jury.

In their brief on appeal, defendants do not zero in and specify what the trial judge did or did not do that constituted allegedly reversible error. We assume that the thrust of defendants’ argument is directed toward the court’s instructions to the jury.

Consequently, we have reviewed the court’s instruction to the jury. The instruction consisted of the Standard Jury Instruction, approved and required by order of the Supreme Court, as amplified by requests of the parties. No objection was made by defendants with respect to the court’s definition of negligence, due care, duties or proximate cause. In the absence of any objection to the court’s charge to the jury, we only review upon a showing of manifest injustice; none appears here. Therefore, insofar as defendants’ claims on appeal rest on the jury instructions, they are without merit.

Affirmed, with costs.

D. F. Walsh, P. J., concurred.

V. J. Brennan, J.

(dissenting). I am forced to dissent from a portion of my brother Beasley’s majority opinion in' this case for the same basic reasons expressed in McNeal v Henry, 82 Mich App 88; 266 NW2d 469 (1978). Though I agree that defendants owed plaintiff a duty of reasonable care due to plaintiffs status as a business invitee, I would conceive the legal definition of that duty, which is a matter for the court to decide, in terms which do not extend to the kind of unforeseeable conduct exhibited by plaintiffs assailant. Defendants’ duty will not legally extend to this kind of harm. Very simply then, I do not believe that an unprovoked attack by a stranger with a revolver is the kind of harm foreseeably related to defendants’ duty to protect their patrons. See Holloway v Martin Oil Service, Inc, 79 Mich App 475; 262 NW2d 858 (1977).

Consequently, I would find that, as a matter of law, defendants could not be held responsible for the type of unforeseeable harm consequent to this unprovoked attack. The court was thus in error by denying defendants’ motion for directed verdict since that motion properly requested the trial court to decide a legal question, which in my opinion should have been resolved by directing a verdict for defendants. Therefore, I would reverse the court below.

       The felon was never apprehended or identified. At the time, the Colonial Theatre was an "all night” movie house (i.e., was open 24 hours a day), but was not an "adult” theatre showing pornographic films. On the night of the assault on plaintiff, the movies "Shaft” and "Shaft’s Big Score” were being shown.

       Plaintiffs proofs indicated the theatre was in a high crime area and that in a two-year period preceding this assault there had been several incidents of criminal acts, including robbery, armed and unarmed, felonious assault and rape.

        Marietta v Cliffs Ridge, Inc, 385 Mich 364; 189 NW2d 208 (1971).

        Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977). Moning itself is a 3-2-2 decision. Both this vote and the previous history of negligence law suggest that this area will continue to receive further development and explanation.

       GCR 1963, 516.6; Javis v Ypsilanti Board of Education, 393 Mich 689; 227 NW2d 543 (1975).


author: R. B. Martin, J.

text:
    THE DETROIT EDISON COMPANY v PUBLIC SERVICE COMMISSION
    1. Public Service Commissions — Public Utilities — Rates—Future Rates — Past Losses.
    The Public Service Commission is empowered to set future rates of a public utility so they are just, reasonable, and nonconfiscatory; the commission may not, however, set a future rate so as to recover for a loss suffered by a utility in the past.
    2. Public Service Commissions — Public Utilities — Rate Making— Legislative Function.
    Public utility rate making is a legislative function not a judicial function.
    3. Public Service Commissions — Public Utilities — Rates—Factors Considered.
    Past expenses and costs of a public utility are factors to be considered by the Public Service Commission in determining a new rate so that the rate is fair and reasonable; however, past expenses and costs are not recoverable under the future rate.
    4. Public Service Commissions — Public Utilities — Rates—Fuel Cost Adjustment Clause — Statutes.
    A fuel cost adjustment clause in a public utility’s rate schedule, which adjusts the rates to reflect a rise or fall in the utility’s fuel costs, is a method not to recoup former costs but to set rates which more accurately reflect present costs; the Public Service Commission is not prohibited from incorporating such a clause in a utility’s rate schedule (MCLA 460.6a; MSA 22.13[6a]).
    References for Points in Headnotes

       64 Am Jur 2d, Public Utilities § 199.

       64 Am Jur 2d, Public Utilities § 89.

       64 Am Jur 2d, Public Utilities §§ 193, 199.

       [No reference]

       64 Am Jur 2d, Public Utilities §§ 130, 131, 276-291.

       64 Am Jur 2d, Public Utilities §§ 230, 232.

      5. Administrative Law — Public Service Commissions — Orders—Review — Constitutional Law — Statutes.
    Any dissatisfied party in interest may sue the Public Service Commission to request vacation of a commission order setting rates to be charged customers of a public utility; such court review shall include, as a, minimum, a determination of whether the order was authorized by law (Const 1963, art 6, § 28, MCLA 462.26; MSA 22.45).
    6. Public Service Commissions — Public Utilities — Rates—Orders— Accounting Procedures — Vested Rights.
    An order of the Public Service Commission which allowed a public utility to change its accounting procedure in regard to a fuel cost adjustment in the utility’s rate schedule and thereby created a paper asset did not create a vested right or property interest in that asset, and a subsequent order of the commission, on a request for a rate change, which took into consideration the accounting change and ordered the utility to write off the asset over a 10-year period was not unlawful, unreasonable or confiscatory.
    Appeal from Ingham, James T. Kallman, J.
    Submitted January 3, 1978, at Lansing.
    (Docket Nos. 30365, 30366.)
    Decided March 20, 1978.
    Leave to appeal applied for.
    Complaint by The Detroit Edison Company against the Michigan Public Service Commission to vacate an order of the commission directing Detroit Edison to write off an accounting asset over a ten-year period. The Attorney General intervened as a defendant. Complaint by the Attorney General against the Public Service Commission also seeking to vacate the same commission order. The Detroit Edison Company intervened in this action as a defendant. The cases were consolidated and a judgment was entered vacating the commission order and directing the commission to enter an order allowing Detroit Edison to secure the amount of the asset through a surcharge. The Public Service Commission appeals, and the Attorney General cross-appeals. Ford Motor Company was allowed to intervene as an appellant.
    Reversed and remanded.

      Foster, Swift, Collins & Coey, P. C. (by Theodore W. Swift and David W. McKeague), and Leon S. Cohan, Dean J. Landau and Christopher C. Nern, Detroit Edison Legal Department, for The Detroit Edison Company.

      Walter V. Kron, Robert J. Taube and James E. Riley, Assistants Attorney General, for the Michigan Public Service Commission.

      Frank J. Kelley, Attorney General, Robert A, Derengoski, Solicitor General, and Hugh B. Anderson and Roderick S. Coy, Assistants Attorney General, for the Attorney General.

      Pat D. Conner (James D. Irvine, of counsel), for intervening appellant Ford Motor Company.
    Before: V. J. Brennan, P. J., and D. E. Holbrook and R. B. Martin, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   R. B. Martin, J.

These cases present "simple” "complex” issues. The parties agree on the facts but labelled events or procedures differently to arrive at disparate legal conclusions.

Let us detail the factual situations.

On September 20, 1973 Detroit Edison, Case No. U-4426, applied to the Michigan Public Service Commission for authority to include a fuel adjustment clause (FCAC) in residential rate schedules as permitted by MCLA 460.6a (2); MSA 22.13(6a) (2). The Attorney General intervened.

On February 4, 1974 in U-4426 the MPSC found the company "proposed to amend its electric rate schedules * * * to incorporate therein fuel clauses which will permit the adjustment of such rates to refect changes in fuel costs.” (Emphasis added.)

The commission reviewed the situation and found "Accordingly, it is proper for a fuel adjustment clause, such as proposed by Applicant, to reflect transmission system and distribution losses”.

The commission then ordered:

"A. The Detroit Edison Company is hereby authorized to incorporate fuel adjustment clauses in its electric rate * * * as contained in Exhibit A * * *
"B. The revised rate schedules attached hereto as Exhibit A are hereby approved for electric service rendered on and after February 5, 1974.”

The commission ordered the company to certify monthly the calculation of the FCAC and to state the fuel adjustment separately on its bills.

Exhibit A set out the procedure for determining the change in billing amounts and said "The adjustment shall apply to the second billing month following the calendar month in which the fuel is burned”.

On April 15, 1974, case U-4570, Edison petitioned for a rate increase to produce an additional $93,048,000 revenue.

While this petition was pending, Detroit Edison filed application F-647 on June 18, 1974, for an order permitting it to revise its accounting procedures. Its then-existing procedures caused the cost of fuel to be recorded in its books as fuel expense in the month the fuel was used. With the time lag provided in U-4426, the order of February 4, 1974, and existing procedures, fuel costs over the base of 5.87 mills per KWH in January would be billed to industrial customers in February and to domestic and commercial customers in March.

On July 29, 1974, case F-647, MPSC approved the request for the accounting change r^What happened thereafter was that Edison set forth as an asset the deferred charge it could not collect until the billing one or two months later. The amount of the bills for each month remained exactly the same under the new accounting system as they were under the old accounting method. However, because the expected increase in billing was listed as an asset, the company’s financial picture looked better. Its position in the stock and borrowing markets was enhanced.

Detroit Edison claims the increased fuel costs placed in the deferred charge asset account came to $26,349,806 for the months of December, 1974, and January, 1975.

On February 3, 1975, the U-4570 petition was acted upon. The commission granted a general rate increase to the company. The order also dealt with the FCAC. The commission said,

"Applicant’s approved fuel cost adjustment clause (FCAC) is intended to recover all increases in fuel costs which are beyond Applicant’s control on a timely basis. As is normal in a rate proceeding, the parties assumed that changes in fuel costs would therefore be reflected in timely adjustments under the FCAC as approved in Applicant’s tariffs.
"Billing Lag
"The Commission finds, however, that Applicant’s currently approved FCAC does not in fact achieve the goal of fully recognizing changes in fuel costs in a timely manner. Therefore the Commission finds it necessary to correct the operation of the clause to reduce the existing time lag between the incurring and the reflecting of increased or decreased costs of fuel in the fuel adjustment. This lag has become a significant problem with rapidly escalating cost of fuels and with the potential assessment of proposed new taxes on these fuels.
"In the Commission’s Order in Case No. F-647, dated July 29, 1974, Applicant was granted permission to record increases in the cost of fuel burned for electric generation not recovered through operation of the FCAC in a balance sheet account rather than an income statement account. This was approved since Applicant was experiencing a significant lag in the recovery of higher fuel costs. No increased revenues were received by Applicant as the result of this accounting treatment. This item was removed from an expense (or income statement) account and transferred to a deferred charge (or balance sheet) account. As a result of this accounting treatment, net income per books could no longer be adversely affected during a period of rising fuel costs by the lag contained within the FCAC provision. This was desirable since it allowed Applicant greater financing flexibility due to the improved financial position reflected on its books. Cash flow, however, continued to be adversely affected since Applicant was unable to offset a significant portion of its increased fuel expense outlays with increased revenues.
"The Commission finds that a FCAC which recognizes changes in the per unit cost of fuel burned for electric generation in a timely manner is appropriate and in the public interest. To assure fair treatment to both Applicant and the consumer, the FCAC should operate in a manner which does not erode the quality of Applicant’s earnings due to increasing fuel costs and at the same time charges the consumer no more than the actual per unit cost of fuel burned.
"The Commission finds that the existing FCAC should be modified with respect to the procedure used in determining the appropriate billing month adjustment factor so as to effectively eliminate the lag. This should be accomplished using actual figures as the basis for calculation of the adjustment factor. * * * As modified, the clause will effectively eliminate any annual under-collection or over-collection of incurred costs of fuel burned by Applicant while continuing to calculate the adjustment factor on the basis of actual fuel cost data.
"Since this modification of the FCAC effectively eliminates the lag, it also removes the need of Applicant’s accounting for deferred fuel costs as directed by the Commission’s Order in Case No. F-647. As such, Applicant should file an application with the Commission for a determination in a separate proceeding as to disposition of the accumulated fuel cost deferral up to the effective date of this order.”

We do note that the commission, on the very next page in commenting on other revisions, states,

"This Commission recognizes that a fuel cost adjustment clause is intended to reasonably reflect increases or decreases in fuel costs on a timely basis.”

In effect the commission said "Utility and customers, there’s still a real lag between expenses for fuel that is constantly rising in price and the billings. We will alter our rules. The bills sent out for a particular month should cover the actual increase of expenses because of increased fuel costs for that particular month. This must be determined, of course, on past, experience.”

Quick as a wink, on February 6, 1975, case U-4758, Detroit Edison applied for their right to collect the $26,349,806 in deferred charges shown by its books as increased costs for December, 1974, and January, 1975, waiting to be billed in following months and now not allowed.

The administrative law judge proposed Edison be allowed a surcharge for 12 months to secure this sum.

On December 22, 1975, the commission rejected this proposal and ordered Edison to write off the $26,349,806 deferred charge asset against income over ten years.

On January 19, 1976, Edison filed in circuit court to review this order. On January 21, 1976, the Attorney General, likewise, filed in circuit court appealing the December 22, 1975, order. He also intervened in the Edison appeal and Edison intervened in the Attorney General’s suit.

The circuit judge issued an opinion on August 10, 1976, and a judgment was entered on September 27, 1976. The judgment vacated the Public Service Commission order and remanded the matter to the commission to enter an order as proposed by the administrative law judge. The Public Service Commission followed this requirement on October 1, 1976.

The parties appeal in both cases. Ford Motor Company was granted the right to intervene in the appeal. Ford Motor claims that since the time the surcharge became effective, they have built and are operating electric steel furnaces. They allege the surcharge will cost them an additional $160,-000 over the usual rates and they received not one kilowatt-hour or fraction thereof of electricity in return for this surcharge.

From these given facts, Detroit Edison believes it should be allowed to surcharge against present customers the $26,349,806 of fuel costs less certain amounts which Edison recognizes as being improper to include. The present amount requested is thus $23,507,000. The PSC, the Attorney General and Ford believe such surcharges should not be allowed.

Let’s look at some of the law involved:

The commission was created with power to regulate the rates of electric utilities; MCLA 460.6; MSA 22.13(6). In determining rates the commission must consider many, many factors including the cost of fuel for the production of electric power. The rate determination may take months and months. To offset this delay the Legislature permits fuel costs adjustment charges (FCAC). They permitted it first for commercial users. 1955 PA 172 added to the rate making procedure,

"Nothing contained in this section shall be construed to prohibit the commission from permitting the incorporation of fuel adjustment clauses in rate schedules for service other than domestic service pursuant to notice and hearing thereon.”

In 1972 this clause was omitted and a new paragraph stated,

"This section or any other law does not prohibit the incorporation of fuel or purchase gas adjustment clauses in rate schedules.” MCLA 460.6a(2); MSA 22.13(6a)(2).

Michigan law gives the commission the right to set future rates so they are just, reasonable and nonconfiscatory. The PSC cannot, however, set a future rate so as to recover for a loss suffered in the past. Michigan Bell Telephone Co v Public Service Commission, 315 Mich 533; 24 NW2d 200 (1946), General Telephone Co of Michigan v Public Service Commission, 341 Mich 620; 67 NW2d 882 (1954), and Michigan Consolidated Gas Co v Public Service Commission, 389 Mich 624; 209 NW2d 210 (1973).

Rate making is a legislative and not a judicial function. Michigan Central R Co v Wayne Circuit Judge, 156 Mich 459; 120 NW 1073 (1909), Detroit v Michigan Public Utilities Commission, 288 Mich 267; 286 NW 368 (1939), and Louisville & Nashville R Co v Garrett, 231 US 298; 34 S Ct 48; 58 L Ed 229 (1913).

This raises the fundamental question as to what our fuel cost adjustment charge actually is. Is it an appendage to and part of the rate making power? If so, can the commission, by its use, set rates to cover past expenses and losses? We would think not.

Past expenses and costs are factors to be considered in determining what the new rate should be so it is fair and reasonable. Past expenses and costs are not recoverable under a future rate. If a rate structure is wrong and causes a utility to lose $1,000,000, the utility cannot recover that in its new rate. The commission must certainly raise the rates so the loss will not continue. If the rate structure is wrong so the utility gains $1,000,000 more profit than is reasonable and just, the commission cannot order a refund. It can certainly lower the rate so there will be no excess profit in the succeeding years.

Is the fuel cost adjustment charge a special power given to the commission to specifically raise rates enough to cover rapidly escalating fuel costs? We think not. We note two things: (1) The statutory language is in a section dealing with the commission’s procedures. (2) The language is not stated as an affirmative grant of power.

MCLA 460.6a; MSA 22.13(6a) deals generally with the procedure the commission must follow when getting an application for a rate increase. It grants the PSC the right to set its rules and procedures. It then says:

"This section or any other law does not prohibit the incorporation of fuel or purchase gas adjustment clauses in rate schedules.”

This is not a statute affirmatively giving the commission the power to set a rate to repay for added fuel costs. It does not try to affirmatively overrule our Supreme Court’s position that the commission cannot grant a rate increase to pay for past losses or expenses.

The Commission is simply told the law does not prohibit it from incorporating fuel or gas adjustment clauses in rate schedules. This means the PSC can insert in rate schedules a formula that will raise and lower rates, depending on whether the utility’s fuel costs rise or fall. The adjustment is made automatically per formula without the necessity of applications, hearings, staff investigations and reports. It is a method not to recoup former costs but to set rates which more accurately reflect present costs so as to more certainly give a just and reasonable income.

With this in mind, we look at just exactly what happened in our case. Petition F-647 was filed June 8, 1974. An order in F-647 was made on July 29, 1974. Therein Edison was given permission to change its bookkeeping and accounting procedures. There had been and remained a time lag of one to two months from the time fuel was purchased to the time the fuel was paid for by billings for electricity. However, the income the company expected to receive one or two months later was now listed as an asset on the company’s books even though nothing had been changed except the bookkeeping system. The December-used fuel still resulted in setting a new rate for the electric billing in January or February. The company was allowed to set this expected receipt up as an asset. This was valuable to them in the sale of stock and raising money through bond issues or other sources.

In the meantime from April 15, 1974 (before F-647 was filed) to February 3, 1975 (after F-647 was decided) the commission was holding hearings, investigating and deciding U-4570, an application for a rate increase. F-647 very carefully avoided the question of a rate increase. It went to accounting methods alone. In fact in F-647 the company specifically §£id,

"With respect to any electric rate order to be issued in Case No. U-4570 or any case subsequently filed or determined, the accounting entries, interpretation and treatment herein authorized shall not serve as a basis in whole or in part, directly or indirectly, for a rate base or cost of service greater than would be determined had such accounting entries, treatment and interpretation not been made or approved, all without prejudice to the right of The Detroit Edison Company to request the benefit in rate proceedings of future orders of the Commission which establish accounting entries, interpretations or treatments other than those established in this proceeding.
"The Detroit Edison Company understands and agrees that the Staff and the intervenors in this proceeding, and any other intervenors in Case No. U-4570 or in future electric rate cases of the Company, are totally free to show or contend that the reported net income, if any, arising from the accounting entries, interpretation or treatment approved by the Commission in this case should be considered and included as a reduction of the Company’s income and revenue requirements in Case No. U-4570 and in future electric rate cases, all without prejudice to the right of The Detroit Edison Company to contend to the contrary.”

The commission then found,

"C. The accounting treatment authorized herein, while not improving the Applicant’s cash flow, wifi provide a better matching of changes in fuel costs with fuel adjustment revenues, and thus a better definition of accounting net income. To the extent that such improvement in reported net income will assist the Applicant in sales of its debt and equity securities, the change in accounting treatment of fuel expense is in the interest and to the beneñt of the Company’s customers and investors.
"D. The accounting proposed by the Applicant will have no effect on the manner in which fuel clause billings to customers are calculated.”

The commission then ordered that the company would be authorized,

"(a) To the extent that costs of fuel burned in any month (i) are subject to billing in a later month or (ii) will produce a credit to customers, each pursuant to fuel cost, adjustment clauses, such costs or credits shall be deferred until such time as they are reflected in billing adjustments made pursuant to such fuel cost adjustment clauses.
"(b) The deferred fuel expense or fuel credit shall be charged or credited to operations in the amount of revenue billed or credit granted under the applicable approved fuel clauses for the particular month.
"2. The revised accounting procedures, as directed above, are to be effective January 1, 1974.
"3. This order shall not cause an increase in rate base or cost of service, for ratemaking purposes as set forth in the stipulation and amendment to the application recited in Finding B above. ” (Emphasis added.)

The February 3, 1975, decision in the rate case U-4570 granted a rate increase. It also considered the position of FCAC and changed the billing procedures so the rates were more nearly and quickly syncronized with the rise or fall of fuel costs. It removed the time lag in the old accounting procedures and permitted Edison to have a rate increase now based on a rise in fuel prices now. (This, of course, is not literally true to the exact dollar but is as close as mathematicians, accountants, bookkeepers and bureaucrats can attain.)

This left Edison with a deferred charge asset of some $26,000,000 on its books. It also gave it more income right now without a one or two month lag. If the fuel costs were going up at the rate of $13,000,000 a month, Edison wasn’t going to have to wait one or two months to have a rate based on the month’s $13,000,000 increase. It could add it to its base cost and to the customer’s bill and collect it now. Therefore, under U-4570 procedures with continually rising prices, Edison was collecting more in a year’s time than it would have if the procedures had not been changed. This increment to its revenue should have given it a just and reasonable rate according to the commission.

The. Court feels the commission had a right to alter the rate and accounting structure in U-4570. This left the company with a paper asset of $26,000,000 and something had to be done with it. The commission decided to permit it to be written off over ten years.

Were the commission’s actions proper? What is the extent of the power of review by the trial court?

The statute, MCLA 462.26; MSA 22.45, provides that any dissatisfied party in interest may sue the commission in the Ingham Circuit Court to request the commission’s order be vacated,

" * * * on the ground that the rate or rates * * * are unlawful or unreasonable, or that any such regulation, practice or service fixed in such order is unreasonable; * * * All suits brought under this section * * * shall proceed, be tried and determined as other chancery suits. Any party * * * may introduce original evidence in addition to the transcript of evidence offered to said commission, and the said circuit court in chancery is 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 court shall decide to be in accordance with the facts and the law;
"(e) In all actions under this section the burden of proof shall be upon the complainant to show by clear and satisfactory evidence that the order of the commission complained of is unlawful or unreasonable, as the case may be.”

This statute, of course, is controlled by Const 1963, art 6, § 28,

"All final decisions, findings, rulings and orders of any administrative officer or agency * * * shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.”

The dissent in Michigan Consolidated Gas Co v PSC, supra, felt that insofar as MCLA 462.26 purported to allow a de novo review it was unconstitutional. The majority did not meet this problem head on. The majority felt the trial court’s issuing of an injunction was based on evidence the commission failed to consider and the injunction was to be effective only until the commission actually set a rate.

In our case the facts are not really disputed. The review then must go, as a minimum, to determine whether the order was authorized by law. It was authorized if it was not confiscatory or unreasonable. We should note again that F-647 was an application to amend accounting procedures. It was filed and heard during the time the rate change application U-4570 was being heard. The commission knew about and considered the accounting procedure change when it was considering the rate change request. In F-647 the company amended its application,

"With respect to any electric rate order to be issued in Case No. U-4570 or any case subsequently filed or determined, the accounting entries, interpretation and treatment herein authorized shall not serve as a basis in whole or in part, directly or indirectly, for a rate base or cost of service greater than would be determined had such accounting entries, treatment and interpretation not been made or approved, all without prejudice to the right of The Detroit Edison Company to request the benefit and rate proceedings of future orders of the Commission which establish accounting entries, interpretations or treatments other than those established in this proceeding.
"The Detroit Edison Company understands and agrees that the Staff and the intervenors in this proceeding, and any other intervenors in Case No. U-4570 or in future electric rate cases of the Company, are totally free to show or contend that the reported net income, if any, arising from the accounting entries, interpretation or treatment approved by the Commission and this case should be considered and included as a reduction of the Company’s income and revenue requirements in Case No. U-4570 and in future electric rate cases, all without prejudice to the right of The Detroit Edison Company to contend to the contrary.”

If the accounting procedures had not been changed by F-647, Edison would not have accumulated a deferred charge asset of $26,349,000. This was a paper asset created at Edison’s request by an order relative to an accounting procedure change and not created by an order relative to a rate change petition. We will not consider the wisdom of the order.

Edison claims this created a vested right, a property interest in the accounting figure asset. It did not. The commission, in F-647, was not setting a rate, was not determining what the basis for a rate should be nor was it altering any FCAC clause. It was acting on Edison’s request for a bookkeeping change to take place while the commission was considering what kind of rate change, if any, should be made to permit a reasonable profit for Edison. If the commission was guaranteeing a recoverable asset as part of a new rate base, it would not háve required the amendment to Edison’s application quoted above. If we allow it as a recoverable asset, we permit retroactive rate making to recover past costs. This we cannot do.

Edison claims the commission would deprive it of property without due process of law since the rates must be sufficient to yield a reasonable return on the value of property being used. But when the F-647 order was entered, the commission was at that time considering the total rate picture and soon afterwards entered a new rate order with the knowledge of what F-647 had done to Edison’s financial picture. Edison has not claimed the order in U-4570 did not yield a fair return. Yet that order took into consideration the accounting changes in F-647. U-4570’s order gave Edison an immediate increase in rates on the basis of all the elements determining rates, including FCAC.

We believe the commission’s order was not unlawful, unreasonable or confiscatory. At Edison’s request the commission permitted the company to improve its position in the stock, bond and borrowing market. It did not guarantee the collection of rates to cover the created bookkeeping entry. It was, at the very time, considering the whole rate picture and all the multitudinous factors that would create the rate structure. When the petition to alter accounting methods specifically said it was not to be used to create a rate base greater than could be determined had the change not been made, Edison should not now come in and claim confiscation of a paper asset.

We reverse the circuit court ruling. We affirm the December 22, 1975, order of the commission. We remand to the trial court to be further remanded to the commission for such action as is necessary to conform to this opinion.