Southern Indiana Gas & Elec. Co. v. City of Boonville
| Decision Date | 01 May 1939 |
| Docket Number | 27162. |
| Court | Indiana Supreme Court |
| Parties | SOUTHERN INDIANA GAS & ELECTRIC CO. et al. v. CITY OF BOONVILLE. |
Appeal from Warrick Circuit Court; Ralph E. Roberts, Special judge.
Daniel H. Ortmeyer, of Evansville, Ora A. Davis, of Boonville, and Dailey, O'Neal, Dailey & Efroymson, of Indianapolis for appellants.
Harry T. Ice and Matson, Ross, McCord & Clifford, all of Indianapolis, and Sylvester T. de Forest, of Boonville, for appellee.
This is an appeal from an interlocutory order appointing appraisers in an action to condemn and acquire certain electrical utility property used and useful in the city of Boonville including a line outside the city, but within six miles thereof, which serves a municipal water plant and some private consumers. Appellant Southern Indiana Gas and Electric Company is the owner of the utility property appellant Bankers Trust Company, Trustee, holds a mortgage on said property; and appellee is the municipal corporation which is seeking to acquire the same.
Appellants filed separate objections to the complaint; evidence was heard; and the order appointing appraisers entered. There were motions for a new trial on behalf of both appellants assigning that the decision appealed from was not sustained by sufficient evidence and was contrary to law. The errors assigned relate to the overruling of appellants' objections and to the denial of their motions for a new trial.
It is first asserted on behalf of the appellants that the trial court was without jurisdiction for the reason that the necessary procedural prerequisites were not observed. The proposed purchase of the utility property by the city was initiated by petition to the municipal council, signed by more than five per cent of the voters of the municipality, pursuant to the provisions of Section 18, Chapter 190, Acts of 1933, Section 54-612, Burns' 1933, Sec. 14029, Baldwin's Ind.St.1934. Said section provides, in part, as follows:
'Whenever five (5) per cent or more of the voters of any municipality of this state, as shown by the total vote cast for all candidates for municipal clerk at the last preceding municipal election therefor shall file a written petition with the municipal council thereof requesting such council to purchase any utility then operating within such municipality or to lease, erect, establish, construct, hold and/or operate a utility, it shall be the duty of such municipal council to order such election and to proceed as follows:
'* * * If said petition is to purchase or condemn the property of an existing public utility, and a majority of the votes cast at such election on said proposal shall vote in favor of such proposal, then such municipal council shall adopt an ordinance declaring a necessity therefor and providing for the condemnation or purchase of such utility, as the case may be, and shall determine the fair and reasonable value of the property of such utility which it desires to acquire and submit the same to the officers of such utility.
'In the event such municipal council and the owners of such utility are unable to agree upon a price to be paid by such municipality for such utility, such municipality shall by ordinance, if it is so determined, declare that a public necessity exists for the condemnation of the property * * *.'
The petition was as follows: 'We, the undersigned residents and voters in city of Boonville, Warrick County, Indiana, hereby petition your honorable body to purchase the utility property of Southern Indiana Gas and Electric Company used and useful in furnishing electric utility service to the city of Boonville and to consumers in Boonville and the territory adjacent thereto.'
Appellants claim that the petition does not meet the requirements of the statute; that it merely requests the municipality 'to purchase' the utility property; and does not authorize the present proceeding to condemn by the exercise of the power of eminent domain. It is to be noted that the portion of the statute relating to the petition is in the alternative, and that it purports to authorize a petition to purchase, 'or to lease, erect, establish, construct, hold and/or operate a utility.'
Our Public Service Commission Act, as originally conceived, was modeled after similar legislation in the State of Wisconsin, and the courts, including the Supreme Court of the United States, have seen fit to attach weight to the decisions of the highest court of that state in interpreting and applying our act. Wabash Valley Elec. Co. v. Young, 1933, 287 U.S. 488, 497, 53 S.Ct. 234, L.Ed. 447, 454. In Wisconsin P. & L. Co. v. Public Service Comm., 1935, 219 Wis. 104, 261 N.W. 711, 262 N.W. 257, the Supreme Court of Wisconsin, in considering the use of the words 'purchase' and 'condemn' in a similar act, observed that both related to a transaction of the same character, and that it was of no consequence that one or the other term was used to indicate the particular proceeding. There is no contention that, in the instant case, the petition was not signed by the requisite number of voters, or that a majority of the votes cast at the special election did not favor the acquisition of the property. In view of the specific language of the act relating to the subject of the petition, and the decision of the Wisconsin court cited above, we conclude that the petition substantially follows the statute, and that the court below had jurisdiction.
The act under which appellee is proceeding provides that if the municipal council and the owners are unable to agree upon a price to be paid for the utility property, the city may condemn under the general statute relating to eminent domain which is Section 3-1701 et seq., Burns' 1933, Sec. 14061 et seq., Baldwin's Ind.St.1934. Section 3-1704, Sec. 14064, Baldwin's 1934 directs that the damages that the owner may sustain on account of any such appropriation, shall be assessed in the first instance by three disinterested freeholders of the county, to be appointed by the court. Appellants say that this procedure does violence to the due process clause of the Federal Constitution, because it arbitrarily authorizes the appraisement to be made by persons without the necessary qualifications, inasmuch as the valuation of such properties requires persons of technical skill and training in the engineering, administration and financing of public utilities. Reliance is placed upon Lone Star Gas Co. v. Fort Worth, 1937, 128 Tex. 392, 98 S.W.2d 799, 109 A.L.R. 374; Passaic etc. Water Co. v. McCutcheon, 1929, 105 N.J.L. 437, 144 A. 571. While these cases lend credence to appellants' contentions, we do not consider them controlling, in view of the many respects in which the Texas and New Jersey statutes differ from ours. It is to be noted that by the terms of our Eminent Domain Act any party aggrieved by the assessment of damages by the appraisers may file written exceptions thereto in the office of the clerk, whereupon the court shall try the issue as in civil actions and render such finding and judgment as to it may seem just. There is also the right of appeal to the Appellate Court, or to this court, as in civil actions. § 3-1707, Burns' 1933, Sec. 14068, Baldwin's 1934 supra. In determining if the requirements of due process are met, the remedies provided must be considered as a whole, and it is not proper to apply the tests to the isolated parts relating only to the...
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