Mt. Hood Stages, Inc. v. Haley, Public Utility Commissioner

SLOAN, J.

In this mandamus proceeding plaintiff alleged that the Commissioner has failed to conform to the mandate of this court and of the trial court in the prior decision of Mt. Hood Stages, Inc. v. Hill, 1966, 243 Or 283, 413 P2d 392. In the latter decision, this court set aside an order of the Commissioner which had denied plaintiff a permit to extend its service from Eugene and Albany to Corvallis. We set aside the order because it was not supported by any findings of the Commissioner. The case was remanded to the Commissioner “for the entry of an order supported by adequate findings.” 243 Or 292, 413 P2d 396. On remand, the Commissioner entered a further order, containing findings, but which still denied plaintiff the permit.

Instead of appealing the Commissioner’s last order, as required by ORS 756.580, plaintiff initiated this proceeding claiming that the Commissioner had violated the mandate ordered by this court and requested the court to compel compliance. The trial court sustained a demurrer to the alternative writ. We affirm.

We agree with the trial court that plaintiff’s remedy as presented by ORS 756.580 provides an adequate remedy. Morgan v. Portland Traction Co., 1958, 222 Or 614, 331 P2d 344.

Furthermore, there was nothing in the previous mandate which denied the Commissioner the right to exercise his judgment in the proceeding before him. The mandate did not require the Commissioner to make any particular order. Any grievance of plaintiff that there was no evidence to support the Commissioner’s findings or that they were contrary to the law of the case, as argued by plaintiff, could have been better considered in the appeal procedure provided by the cited statute.

Affirmed.