American Vitrified Products Co. v. Public Service Comn. of Indiana

• Citation: 131 Ind.App. 378,170 N.E.2d 823
• Decision Date: 22 December 1960
• Docket Number: No. 19262,19262
• Parties: AMERICAN VITRIFIED PRODUCTS COMPANY, California Pellet Mill Co., Harris Packing Co., Inc., Hydraulic-Press Brick Company, Mid-States Steel & Wire Co., Plastene Corporation, Sommer Metalcraft Corporation, The Hoosier Crown Corporation, Appellants, v. PUBLIC SERVICE COMMISSION OF INDIANA and John Van Ness, Ira Haymaker and Garland G. Skelton, as members of and constituting The Public Service Commission of Indiana; and The City of Crawfordsville, Indiana, Appellees. *
• Court: Court of Appeals of Indiana

Page 823

170 N.E.2d 823

131 Ind.App. 378

AMERICAN VITRIFIED PRODUCTS COMPANY, California Pellet Mill

Co., Harris Packing Co., Inc., Hydraulic-Press Brick

Company, Mid-States Steel & Wire Co., Plastene Corporation,

Sommer Metalcraft Corporation, The Hoosier Crown

Corporation, Appellants, v. PUBLIC SERVICE COMMISSION OF INDIANA and John Van Ness, Ira

Haymaker and Garland G. Skelton, as members of and

constituting The Public Service Commission of Indiana; and

The City of Crawfordsville, Indiana, Appellees. ^*

No. 19262.

Appellate Court of Indiana, In Banc.

Dec. 22, 1960.

For opinion of Supreme Court see 172 N.E.2d 60.

Henry C. Ryder, Buschmann, Krieg, DeVault & Alexander, Indianapolis, of counsel, for appellants.

Walter N. Haney, Crawfordsville, LaFuze, Ging & Graber, Indianapolis, Edwin K. Steers, Atty. Gen., for appellees.

AX, Chief Justice.

This is an appeal from an order of the Public Service Commission of Indiana. The City of Crawfordsville, in Montgomery County, Indiana, owned and operated an electric light and power utility. On November 12, 1957, it filed its petition with the Commission asking for permission to revise its schedule of rates and charges. This was based upon an ordinance previously passed by the common council which adopted a new and higher schedule of rates.

On January 24, 1958, a petition to intervene was filed by appellants, who were eight industrial customers and users of the utility. They alleged that the proposed rates and charges were unjust and unreasonable; that they were discriminatory against them as commercial power users under the proposed primary power rate; that the proposed schedule contained vague, ambiguous and inequitable provisions. After holding public hearings, the Commission entered an order on May 2, 1958, approving the City's proposed schedule of rates and charges, finding that they were non-discriminatory, reasonable and just within the meaning of the applicable statute. Section 54-609, Burns' 1951 Repl. Appellants filed a petition for rehearing, later revised to be a petition for rehearing of oral argument before the Full Commission. This was subsequently held before a majority of the Commission. In the meantime, the order increasing the rates was continued in effect by the Commission. On September 25, 1958, the Commission approved the order of May 2, 1958, decreeing that it should remain in full force and effect.

Appellants have appealed from the order of May 2, 1958, to this court. Following the filing of the transcript, appellee, The City of Crawfordsville, Indiana, filed its motion to dismiss the appeal, stating as its grounds that the order of May 2, 1958, was an interlocutory order of the Commission, and that there is no provision in the statutes pertaining to the Public Service Commission for an appeal to the Appellate Court from such an order. The act of 1957, chapter 189, section 1, Acts of the Indiana General Assembly, provides for an appeal to the Appellate Court from a 'final decision, ruling, or order' of the Commission. Appellee argued that this court had only jurisdiction to dismiss the appeal. Appellants argued that a so-called 'appeal' from an order of the Public Service Commission differs from the appeal of a final judgment in a civil or criminal case, in that this was an order of a public administrative body which is subject to judicial review, even though the Legislature has not provided a means for such review. Warren v. Indiana Telephone Co., 1940, 217 Ind. 93, 26 N.E.2d 399, is cited as authority. They further argued that in accordance with decisions from other states, this order was in reality a final order for purposes of judicial review, and, finally, they rely on Supreme Court Rule 2-3 as giving this court power to review the order.

The motion to dismiss was overruled in May, 1959. Subsequently briefs were filed on the merits.

The case has come up before the full court sitting in banc because of its importance. Once again the question of jurisdiction has arisen, and the court is evenly divided...