City of Richmond v. Indiana & Michigan Elec. Co.

• Decision Date: 30 August 1976
• Docket Number: No. 2--1175A322,2--1175A322
• Citation: 170 Ind.App. 458,353 N.E.2d 467
• Parties: CITY OF RICHMOND, d/b/a Richmond Power & Light, Appellant (Intervenor below), v. INDIANA & MICHIGAN ELECTRIC COMPANY, an Indiana Corporation, Appellee(Petitioner below), Public Service Commission of Indiana, Appellee, Larry J. Wallace et al., Appellees, Frank J. Biddinger, Public Counselor of the State of Indiana, Appellee, Charles W. Cole & Son, Inc., et al., Appellees (Intervenors below), City of Fort Wayne, Appellee (Intervenor below), General Motors Corporation, a Delaware Corporation, Appellee (Intervenor below).
• Court: Indiana Appellate Court

Page 467

353 N.E.2d 467

170 Ind.App. 458

CITY OF RICHMOND, d/b/a Richmond Power & Light, Appellant (Intervenor below), v. INDIANA & MICHIGAN ELECTRIC COMPANY, an Indiana Corporation Appellee(Petitioner below) Public Service Commission of Indiana, Appellee Larry J. Wallace et al., Appellees Frank J. Biddinger, Public Counselor of the State of Indiana, Appellee, Charles W. Cole & Son, Inc., et al., Appellees (Intervenors below), City of Fort Wayne, Appellee (Intervenor below), General Motors Corporation, a Delaware Corporation, Appellee (Intervenor below).

No. 2--1175A322.

Court of Appeals of Indiana, Second District.

Aug. 30, 1976.

Rehearing Denied Oct. 7, 1976.

Robert V. Bridwell, Indianapolis, for appellant.

Stephen B. Caplin, Indianapolis, Smith, Morgan & Ryan, Indianapolis, Livingston, Dildine, Haynie & Yoder, Fort Wayne, Sparrenberger, Duvall, Tabbert & Lalley, Indianapolis, Lebamoff, Ver Wiebe & Snow, Ft. Wayne, John J. Metts, Indianapolis, Paul Hirsch, of Haymaker, Hirsch & Fink, Indianapolis, Hoffman, Moppert, Solomon, Miller & Thompson, Ft. Wayne, Simpson, Thacher & Bartlett, New York City, for appellees.

PER CURIAM.

This cause is pending before the Court on a Motion to Dismiss or Affirm filed by the appellee Indiana & Michigan Electric Company, which alleges, inter alia, that the Order which is the subject of this appeal is not a final, appealable Order, and that the appellant has not exhausted its administrative remedies.

This matter was before the Public Service Commission on the Petition of the Appellee Indiana & Michigan Electric Company for Authority to Make Upward Adjustments in its Existing Electric Service Rates and for Approval of New Schedules of Rates, Rules and Regulations Therefor.

After a hearing, the Commission issued on May 28, 1975, an interim order which ordered the following: (1) Authorized Petitioner to extend and increase its interim emergency surcharge to produce increased operating revenues; (2) Authorized Petitioner to make an interim emergency surcharge on each customer's bill for electric service pending the further order of the Commission; (3) Ordered Petitioner to file schedules of rates, surcharges and tariffs together with terms and conditions of service; (4) Ordered Petitioner to reduce its ratio of long term debt to equity capital, and (5) Ordered Petitioner to submit to a management study. On June 4, 1975, the Commission issued a supplementary order correcting and clarifying its previous order of May 28.

Thereafter, on September 12, 1975, Intervenor-Appellant City of Richmond, d/b/a Richmond Power & Light (City), filed its 'Petition for Order Rejecting in Part the Filing of Tariff IP Pursuant to the Order of May 28, 1975, as Modified by the Supplemental Order of June 4, 1975', wherein City prayed that the Commission reject the filing by Petitioner of certain portions of the IP (Industrial Power) Tariff which City alleged were in violation of the Commission's Order of May 28, 1975. City's Petition was denied by order of a single member of the Commission. It is from this Order of a single member of the Commission that Appellant, City of Richmond, now seeks to appeal.

Appellee Indiana & Michigan Electric Company alleges this appeal should be dismissed because the Order sought to be appealed is not a final, appealable Order, and further, because appellant did not exhaust its administrative remedy by appealing the Order of the single commissioner to the full Commission for ruling before it appealed to this Court.

We agree with the Appellee. We have searched the case law, the statute, and the rules and regulations adopted by the Public Service Commission. Nowhere do we find any authority for appealing an order of a single commissioner directly to this Court, without first appealing to the full Commission.

The legislature has given the Public Service Commission of Indiana the duty to formulate rules or regulations necessary or appropriate to carry out the provisions of the Act. IC 1971, 8--1--1--3 (Burns Code Ed.) Pursuant to said directive it has adopted rules. Rule (54--201)--A--2 (Burns' Indiana Administrative Rules and Regulations) defines the word 'commission' when used in the rules to mean the public service commission of Indiana. Rule (54--401)--1 (Burns' Indiana Administrative Rules and Regulations, Supp.1975) provides that these rule shall govern the practice and procedure in matters before the public service commission of Indiana. Subsection (f) of said rule provides:

'(f) Any ruling of the presiding commissioner, deputy commissioner or examiner may be appealed to the commission for ruling. The ruling of the commission, when made, shall be noted in the stenographic record and, if made after the hearing is closed, the commission will advise all parties of record of such ruling. Pending such ruling of the commission on appeal, the proceeding may proceed on the basis of the ruling of the presiding commissioner, deputy commissioner or examiner subject to the preservation of any rights of any party on the results of the appeal to the full commission.'

The statute providing for judicial review of decisions of the Commission, IC 1971, 8--1--3--1 (Burns Code Ed.) is as follows:

'Any person, firm, association, corporation, city, town or public utility adversely affected by any final decision ruling, or order of the public service commission of Indiana, may, within thirty (30) days from the date of entry of such decision, ruling, or order, appeal to the Appellate Court (Court of Appeals) of Indiana for errors of law under the same terms and conditions as govern appeals in ordinary civil actions, except as otherwise herein provided, and with the right of the losing party or parties in the Appellate Court (Court of Appeals) to apply to the Supreme Court for a petition to transfer the cause to said Supreme Court as in other cases...