FOR PUBLICATION



YELLOW FREIGHT SYSTEM, INC.,
                 



Plaintiff-Appellee,



v                                            No. 194703

                                             Court of Claims

                                             LC No. 95-015706 CM

STATE OF MICHIGAN, DEPARTMENT OF             

TREASURY, STATE TREASURER,

DEPARTMENT OF COMMERCE, DIRECTOR

OF DEPARTMENT OF COMMERCE,

MICHIGAN PUBLIC SERVICE

COMMISSION, and MICHIGAN PUBLIC

SERVICE COMMISSIONERS,




Defendants-Appellants.





YELLOW FREIGHT SYSTEM, INC.,




Plaintiff-Appellant,



v                                            No. 195564

                                             Court of Claims

                                             LC No. 95-015706 CM

STATE OF MICHIGAN, DEPARTMENT OF             

TREASURY, STATE TREASURER,

DEPARTMENT OF COMMERCE, DIRECTOR

OF DEPARTMENT OF COMMERCE,

MICHIGAN PUBLIC SERVICE COMMISSION,

and MICHIGAN PUBLIC SERVICE

COMMISSIONERS,




Defendants-Appellees.





Before:  Griffin, P.J., and McDonald and O’Connell, JJ.



O’CONNELL, J. (concurring in part and dissenting in part.)



     I respectfully dissent from part II of the majority opinion.

I  find  no ambiguity in the statutory provision in dispute,  and

accordingly  would  instruct the Court of  Claims  to  apply  the

statutory  language  according  to  its  plain  meaning  and  not

accordingly to the ICC’s strained construction.



     The primary goal of statutory interpretation is to ascertain

and  give  effect  to its legislative purpose.   Haworth,  Inc  v

Wickes  Mfg Co, 210 Mich App 222, 227; 532 NW2d 903 (1995).   The

language  of  the  statute  itself is the  primary  indicator  of

legislative  intent.   Folands Jewelry Brokers,  Inc  v  City  of

Warren,  210  Mich App 304, 307; 532 NW2d 920  (1995).   “If  the

plain  and  ordinary  meaning of the statute is  clear,  judicial

construction is normally neither necessary nor permitted.”  Dep’t

of Transportation v Thrasher, 196 Mich App 320, 323; 493 NW2d 457

(1992), aff’d 446 Mich 61; 521 NW2d 214 (1994).



      The  pertinent  language  in 49 USC 11506(c)(2)(B)(iv)(III)

provides for establishment of a fee system that “will result in a

fee for each participating State that is equal to the fee, not to

exceed  $10 per vehicle, that such State collected or charged  as

of  November 15, 1991.”  The majority reasons that this  language

calls  for  identifying a “pertinent period” ending November  15,

1991, but that it reveals no congressional intent concerning when

this  period  begins.  The majority then resolves  this  supposed

ambiguity by concluding that the provision refers to fees charged

for  the  registration  year  that includes  November  15,  1991.

However,  this construction disregards the word “collected,”  and

broadens  the specific reference, “as of November 15,  1991,”  to

indicate  the  whole  registration year that happens  to  include

November 15, 1991.”  This distortion of the plain wording of  the

statute is unnecessary and inappropriate.  Legislative intent “is

to  be  found in the terms and arrangement of the statute without

straining or refinement, and the expressions used are to be taken

in  their  natural and ordinary sense.”  Gross v  General  Motors

Corp, 448 Mich 147, 160; 528 NW2d 707 (1995).  The ambiguity that

the  majority  finds is the result of the majority’s  failure  to

accept  the  statutory wording at face value.  When a statute  is

clear  on  its  face,  judicial construction is  unnecessary  and

inappropriate.  Thrasher, supra.



      As  the  majority states, it was the intent of Congress  to

“freeze fees at the level as of November 15, 1991.”  To determine

the  particulars of that intent, I would restore  “collected”  as

the  companion  of  “charged,” and  respect  the  specificity  of

“November 15, 1991.”  A court should presume that every word  has

some  meaning,  and  avoid rendering any  word  nugatory.   Tiger

Stadium Fan Club, Inc v Governor, 217 Mich App 439, 457; 553 NW2d

7.   Accordingly,  I  would read “fee  .  .  .  that  such  State

collected  or  charged as of November 15,  1991”  as  fixing  fee

levels by reference to what the state charged on, or had actually

collected by, November 15, 1991.



      The statute does not refer to a “period” ending on November

15, but simply to that specific date.  It does not refer only  to

the  fee  structure in place at the specified time, but  to  fees

“collected or charged” at that time, identifying fees payable  to

the  state,  or  already  paid to the  state  (for  whatever  the

reason),  as establishing the level at which the fees are  to  be

frozen.   The  words  “as of” in reference  to  a  specific  date

clearly refer to the status quo in place on that date.  Thus, the

congressional  intent to freeze fees at the rates  “collected  or

charged  as  of  November 15, 1991” plainly recognizes  for  this

purpose  both the rates actually charged, and those according  to

which fees were actually collected, on that date.



      Accordingly,  because  the state had collected  plaintiff’s

fees as envisioned for the 1992 registration year “as of November

15,  1991,”  49 USC 11506(c)(2)(B)(iv)(III), by its plain  terms,

allows the state to continue to assess plaintiff’s fees according

to  the new scheme under which plaintiff had tendered payment  by

November 15, 1991.



      At  stake here is the state’s interest in collecting higher

fees  from  plaintiff in accordance with recent  changes  in  the

state’s  regulatory scheme, and plaintiff’s interest in  avoiding

those  fee  increases  and continuing to operate  under  the  old

scheme.   Each  party argues that the other stands to  receive  a

windfall  if the other’s interpretation of the statutory language

at   issue   is   adopted.   That  statutes  have   the   effect,

intentionally or not, of benefiting some and burdening others  is

not  a  matter of dispute, and the ISTEA is no exception.   Under

any  interpretation  of  49 USC 11506(c)(2)(B)(iv)(III),  someone

will win and someone will lose.  Although the state’s reading  of

the  statute to cause plaintiff to have to continue to  pay  much

higher  fees  simply because plaintiff chose  to  pay  1992  fees

before November 15, 1991, may seem a harsh result, the result  is

equally  harsh  if the state is obliged to forego  receiving  the

higher  revenues to which its own laws entitle it simply  because

the  federal statute articulated a date of late 1991  instead  of

early 1992.  For these reasons, I would avoid any concern for who

benefits, or who burdens, from 49 USC 11506(c)(2)(B)(iv)(III) and

simply give effect to its plain language.



      Although  I  express no disagreement with the reasoning  of

part  V  of  the  majority opinion, I do not join  in  that  part

because  it  concerns the relief to which plaintiff is  entitled,

where  under  my reading of the statute in question plaintiff  is

not entitled to any relief.  I concur with parts III, IV, and VI.



                                        /s/ Peter D. O’Connell