American Vitrified Products Co. v. Public Service Commission

• Decision Date: 03 February 1961
• Docket Number: No. 19262,19262
• Citation: 172 N.E.2d 60,241 Ind. 307
• 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: Indiana Supreme Court

Page 60

172 N.E.2d 60

241 Ind. 307

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.

Supreme Court of Indiana.

Feb. 3, 1961.

Henry C. Ryer, Buschmann, Krieg, DeVault & Alexander, Indianapolis, for appellants.

Walter N. Haney, City Atty., Crawfordsville, Lafuse, Ging & Graber, Indianapolis, Robert F. Wernle, Crawfordsville, for appellees.

ACHOR, Judge.

This is an action wherein the appellants petitioned the Appellate Court for review of an order of the Public Service Commission of Indiana pursuant to § 54-443, Burns' 1951 Repl. [1959 Supp.]. The cause has come to this court by order of the Chief Justice of the Appellate Court under the purported authority of § 4-214, Burns' 1946 Repl., on the ground that a majority of the judges of the Appellate Court are unable to concur as to whether the case can be decided upon grounds other than that which involves a constitutional question. ¹ (The order of the Appellate Court is reported in 170 N.E.2d 823.)

However, this court has heretofore held that provision of § 4-214, relied upon in the order of Appellate Court, has no application to proceedings in which that court is vested with exclusive original jurisdiction and such proceedings are therefore, in fact, a judicial review and not an appeal. Upon this subject this court has specifically stated:

'The provision of the statute which requires that appeals, in which the constitutionality of a statute is presented, shall be taken directly to the Supreme Court has no application to cases which go to the Appellate Court as a court of original jurisdiction. * * *' State ex rel. Standard Oil Co. v. Review Bd., 1951, 230 Ind. 1, 13, 101 N.E.2d 60, 65.

Furthermore, this court has specifically held that the 'appeal' provided for in § 54-443, supra, from an order of the Public Service Commission to the Appellate Court is, in fact, not an appeal, but a judicial review by the Appellate Court, which is the court of exclusive original jurisdiction in such cases. Sizemore v. Public Service Commission of Indiana, Ind. 1960, 167 N.E.2d 343; Graver Tank & Mfg. Co., Inc. v. Maher, 1958, 238 Ind. 226, 150 N.E.2d 254.

Therefore, § 4-214, supra, provides no authority for transfer of the cause to this court. The procedure which must be followed by the Appellate Court in this and similar cases, and the reasons therefor are clearly stated in the Sizemore case, supra.

This case is therefore...