Citizens Gas and Coke Utility v. Sloan

Decision Date06 April 1964
Docket NumberNo. 19928,19928
PartiesCITIZES GAS & COKE UTILITY, A Utility District and an instrumentality of the City of Indianapolis, Indiana, Brodehurst Elsey, et al., as Members of and Constituting the Board of Directors for Utilities of the City of Indianapolis, Doing Business as Citizens Gas & Coke Utility, Citizens By-Products Coal Company, a West Virginia Corporation, Appellants, v. Robert SLOAN et al., Certain Property Owners of Land Making Up the Worthington Gas Storage Field in Greene County, Indiana, Public Service Commission of Indiana, Merton Stanley, C. Patrick Clancy, Ira Haymaker, as Members of and Constituting the Public Service Commission of Indiana, Appellees.
CourtIndiana Appellate Court

Harry T. Ice, of Ross, McCord, Ice & Miller, Robert D. Risch, Indianapolis, Patrick J. Smith, of Thompson, O'Neal & Smith, Marvin L. Hackman, James R. McClarnon, Indianapolis, Ross, McCord, Ice & Miller, Indianapolis, Thompson, O'Neal & Smith, Indianapolis, of counsel, for appellants.

Gustav H. Dongus, Arthur H. Gemmer, Fauvre, Dongus, Ging & Gemmer, Indianapolis, Harry T. Latham, Jr., of Key, Latham & Strawbridge, Indianapolis, for individual appellees.

Fred A. Jewell, Worthington, Edwin K. Steers, Atty. Gen. of Indiana, Indianapolis, for appellee Public Service Commission.

MOTE, Judge.

Although the petition for rehearing filed herein by individual appellees is argumentative, not in proper form and does not comply with the provisions of the Rules of the Supreme Court, particularly Rule 2-22 thereof, instead of dismissing the said motion, we are inclined to and do hereby deny the same, that the said appellees may have an opportunity further to pursue their objections to the decision and opinion rendered herein.

It should be clear that this court by its decision and opinion, other than not requiring exhaustion of administrative remedies in this case alone, before the Public Service Commission of Indiana, merely declared that the Public Service Commission of Indiana does not have jurisdiction to consider the matters within the framework of the complaint or petition filed with it by said individual appellees, inasmuch as rates, regulations, etc., as set forth in § 54-408, Burns' 1951 Replacement, are not involved.

It follows that the said Public Service Commission is not bound by the decision and opinion in any other area or field; hence, the failure to rule on its motion to dismiss the appeal does not appear to be of a prejudicial nature. Therefore, the motion of the Public Service Commission of Indiana for a ruling on its motion to dismiss the appeal is denied, as is also its motion for a rehearing.

CARSON, C. J., HUNTER, P. J., and KELLEY and RYAN, JJ., concur.

PFAFF, J., dissents with opinion.

COOPER and FAULCONER, JJ., not participating.

PFAFF, Judge (dissenting).

This case (see Ind.App., 196 N.E.2d 290; again comes before us on a petition for rehearing.

A general conference of the court sitting in banc by a majority vote denied appellees' petition for rehearing with opinion. I again cannot agree with this action taken by the court and hereby voice my dissent for the following reasons:

Judicial review of a Public Service Commission order by the Appellate Court is a statutory action. § 54-443 et seq., Burns' 1963 Supp. The statute provides that appeals shall be taken from final orders within 30 days. The statute also provides that the 30-day time limit may be extended if the appellant files a petition for rehearing with the Commission, § 54-444, Burns' 1963 Supp., pursuant to Commission rules, § 54-446, Burns' 1963 Supp.

In the case before us a complaint was filed with the Commission asking for an investigation of the operations of Citizens Gas and Coke Utility, a municipal utility of the City of Indianapolis, and its foreign subsidiary, Citizens By-Products Coal Company, within Greene County. The complaint alleges that Citizens Gas and Coke Utility is limited by § 48-7103, Burns' 1963 Replacement, to operating and furnishing gas within the City of Indianapolis, and within 5 miles beyond in Marion County; that Citizens By-Products Coal Company, as a West Virginia corporation, is prohibited by § 54-603, Burns' 1951 Replacement, from operating anywhere in Indiana as a public utility; that both said corporations are engaged in the storage of gas and the furnishing of gas service within Greene County, which is 65 miles outside Marion County and three counties away.

The Commission statute gives the Commission jurisdiction over municipal utilities and only exempts them from its jurisdiction if their operations are confined to the particular municipality and within 6 miles beyond. § 54-105, Burns' 1963 Supp.; §§ 54-602, 54-607, 54-707, Burns' 1951 Replacement; § 54-609, Burns' 1963 Supp. The Citizens Gas and Coke Utility statute of creation limits its operations to the City of Indianapolis and 5 miles beyond, and makes its rules and rates subject to the approval of the Commission. § 48-7103, Burns' 1963 Replacement. The Underground Storage of Gas acts declare such storage to be a public use. § 3-1729 et seq., Burns' 1963 Supp.

In the case before us the only thing which has so far occurred is that appellant filed a motion to dismiss, on which oral argument was heard, after which the Commission denied the motion to dismiss, holding:

'* * * said Acts do state certain areas in which the Commission would have jurisdiction over Citizens Gas and Coke Utility; * * *.

'* * * the Motion to Dismiss * * * is in the nature of a demurrer to the complaint; and, therefore, the Commission must accept the allegations set forth in the Complaint * * * as true; that among said allegations, we find on Page 6 of the Complaint, Rhetorical Paragraph '7. (f) Furnished gas service to inhabitants of Greene County'; that this allegation alone, if proven, would give this Commission authority to * * * undertake an investigation; * * *.

'* * * the Motion to Dismiss * * * is hereby denied; that this cause be set down for hearing by the Commission.' (Emphasis supplied.)

It is a factual question whether or not Citizens Gas and Coke Utility has committed acts which exceed its statutory authority and whether or not those acts exceed the exemption portions of the Public Service Commission Act. Those facts can only be determined by the Commission upon hearing held and evidence heard. § 54-112, Burns' 1951 Replacement.

No hearing has been held and no evidence has been heard. Since there has been no hearing, there could be no petition for rehearing and appellant could not extend its appeal time by filing one. The order denying the motion to dismiss was entered on July 20, 1962, but appellant did not perfect its appeal until October 26, 1962, which is 98 days later and 68 days too late.

Section 54-408, Burns' 1951 Replacement, provides as follows:

'Upon a complaint made against any public utility by any mercantile, agricultural or manufacturing society or by any body politic or municipal organization or by ten (10) persons, firms, corporations or associations, or ten (10) complainants of all or any of the aforementioned classes, or by any public utility, that any of the rates, tolls, charges or schedules or any joint rate or rates in which such petitioner is directly interested are in any respect unreasonable or unjustly discriminatory, or that any regulation,...

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