Daviess-Martin County Rural Tel. Corp. v. Public Service Commission, DAVIESS-MARTIN

• Decision Date: 26 April 1961
• Docket Number: No. 19283,DAVIESS-MARTIN,19283
• Citation: 132 Ind.App. 610,174 N.E.2d 63
• Parties: , 38 P.U.R.3d 442 COUNTY RURAL TELEPHONE CORPORATION, Appellant, v. PUBLIC SERVICE COMMISSION of Indiana, John Van Ness, Ira Haymaker, Leslie Duvall, as Members of the Public Service Commission of Indiana, and Indiana Telephone Corporation, Appellees.
• Court: Indiana Appellate Court

Page 63

174 N.E.2d 63

132 Ind.App. 610, 38 P.U.R.3d 442

DAVIESS-MARTIN COUNTY RURAL TELEPHONE CORPORATION, Appellant, v. PUBLIC SERVICE COMMISSION of Indiana, John Van Ness, Ira Haymaker, Leslie Duvall, as Members of the Public Service Commission of Indiana, and Indiana Telephone Corporation Appellees.

No. 19283.

Appellate Court of Indiana, In Banc.

April 26, 1961.

Rehearing Denied June 15, 1961.

See 175 N.E.2d 439.

Gray & Waddle, Petersburg, Jack Hayes, Washington, Tennis & Cochran, Sullivan, for appellant.

Goodrich, Campbell & Warren, Claude M. Warren, Frank L. Harlor, Public Counsellor, Indianapolis, for appellee Indiana Telephone Corp.

COOPER, Judge.

This is a judicial review of a decision of the Public Service Commission of Indiana entitled below as, 'In the Matter of the Petition of Indiana Telephone Corporation for a Certificate of Territorial Authority for Shoals Exchange' and 'Daviess-Martin County Rural Telephone Corporation v. Indiana Telephone Corporation', said matter being consolidated below and is before us on review in the same manner.

We judicially know that this cause has been before our Supreme Court before and was affirmed in part and reversed in part. See Public Service Comm. of Indiana et al. v. Indiana Tel. Corp., 1957, 237 Ind. 352, 146 N.E.2d 248.

Having been before the Supreme Court, we must bear in mind that the decision and rulings made by that court upon the first appeal settle definitely for the purposes of the litigation, all questions adjudicated. See City of Rushville v. Rushville Natural Gas Co., 1905, 164 Ind. 162, 73 N.E. 87, and such decision is the 'law of the case'; also, the Supreme Court's judgment on the former appeal is res judicata against the parties of record thereto, with respect to all matters in issue and determined therein. Collins, Trustee v. Siegel, 1938, 214 Ind. 206, 14 N.E.2d 582. A second, or subsequent appeal or review only brings up for review the proceedings subsequent to the reversal or remand, and all questions presented on the first appeal, including jurisdictional question, will not be considered on the second appeal; also, all rulings on questions not expressly affirmed or reversed will be deemed impliedly affirmed. See Chicago, etc., R. Co. v. Dinius, 1913, 180 Ind. 596, 103 N.E. 625.

The record before us reflects that the issues before the Commission in Cause No. 25590 were presented by the 'Second Amended Petition' of Indiana Telephone Corporation (hereinafter referred to as 'Company') and the 'Answer of the Intervenor, Daviess-Martin County Rural Telephone Corporation' thereto. The issues in Cause No. 25899 were presented by the 'Amended Complaint' of Daviess-Martin County Rural Telephone Corporation (hereinafter referred to as 'Co-Op'), the 'Answer to Amended Complaint' thereto of the Company and the 'Reply' of the Co-Op.

The record reveals that after the conclusion of all the evidence submitted in said consolidated causes, the Commission made the following ruling, order and findings, omitting the formal parts, signatures and legal descriptions contained therein, in its decision:

By the Commission:

'On August 26, 1954, Indiana Telephone Corporation (the 'Company'), filed with this Commission its verified Petition in Cause No. 25590, seeking a Certificate of Territorial Authority for its telephone exchange at Shoals, Indiana. Said cause was set for hearing on February 2, 1955, and notices of said hearing were given as provided by law.

'On January 14, 1955, Daviess-Martin County Rural Telephone Corporation (the 'Co-Op.') filed its Petition for Intervention in said cause; and on the same date, the Co-Op. filed with this Commission its Complaint against the Company in Cause No. 25899. Said cause was set for hearing on February 2, 1955, and notices of said hearing were given as provided by law.

'At the hearing on February 2, 1955, the Commission ordered that said causes be consolidated for hearing and disposition.

'At the hearing on February 2, 1955, Frances E. Sim, a member of the Co-Op. and a resident of the territory involved, filed in these causes, her Petition for Leave to Intervene, which was granted.

'At the close of the hearing on February 2, 1955, the Company orally moved to amend its Petition in Cause No. 25590, to include a larger territory. The Commission directed the Company to file its motion in writing, which was done on February 9, 1955.

'After the hearing in these consolidated causes, this Commission entered its Order, dated May 5, 1955.

'On May 25, 1955, the Company filed with this Commission its Petition for Rehearing in these causes; and on June 2, 1955, this Commission entered its second order in these causes denying the Petition for Rehearing and authorizing the Co-Op. to construct in its franchise area suitable telephone facilities in a portion of the area for which the Company had requested a Certificate of Territorial Authority.

'On June 18, 1955, the Company filed in the Martin Circuit Court its Complaint against this Commission and the Co-Op., praying that the Order entered in these causes on May 5, 1955, and on June 2, 1955, be set aside as being unreasonable and unlawful.

'On September 22, 1955, the Co-Op. filed in these causes with this Commission its 'Complaint for Enforcement of Order'; and on September 23, 1955, the Company filed its 'Plea in Abatement' to said 'Complaint for Enforcement of Order'. After giving notice of hearing on said Complaint, hearing was held by the Commission on October 13, 1955.

'On November 4, 1955, this Commission entered its third Order in these causes directing the Company to remove its telephone facilities located within the territory in dispute; and on November 23, 1955, this Commission entered its Amended Order in these causes which is substantially the same as the Order of November 4, 1955.

'On December 9, 1955, the Company filed its Supplemental Complaint with the Martin Circuit Court in order to bring under the jurisdiction of said Court the Orders of the Commission in these causes which were approved on November 4, 1955 and November 23, 1955.

'On June 4, 1956, the Martin Circuit Court entered its Judgment and Decree, which was in effect that the Orders entered by this Commission in these causes were insufficient, unreasonable and unlawful and said Orders were vacated and set aside.

'In due course, this Commission and the Co-Op. appealed to the Indiana Supreme Court and on December 2, 1957, the Supreme Court affirmed part and reversed part of the Judgment and Decree of the Martin Circuit Court and remanded the matter back to this Commission. Public Service Commission of Indiana v. Indiana Telephone Corporation, Ind. , 146 N.E. (2), 249.

'On February 28, 1958, this Commission entered its Order in these causes setting a further hearing on April 16, 1958, and directing all parties desiring to file further pleadings to do so fifteen (15) days prior to such hearing, along with a brief and concise statement of the nature of the evidence which any party proposed to present at the hearing.

'In compliance with the last mentioned Order, the Company filed its Second Amended Petition in Cause No. 25590 to which was attached a map showing in green the territory involved about which there is no dispute and showing in red the territory involved about which there is a dispute. By its Second Amended Petition, the Company requests this Commission to issue to the Company a Certificate of Territorial Authority for the territory shown in green on said map and a Certificate of Public Convenience and Necessity for the territory shown in red on said map. The Company also filed a concise statement of additional evidence which it would present at the hearing on April 16, 1958.

'Also in compliance with the last mentioned Order, the Co-Op. filed its Amended Complaint in Cause No. 25899, which prays, among other things, that the Company be directed to remove its telephone facilities from the disputed territory and to enter into 'reciprocal extended service agreements affecting the Trinity Springs exchange' of the Co-Op. and the Shoals exchange of the Company. The Co-Op. also filed a concise statement of additional evidence which it would present at the hearing on April 16, 1958.

'The Co-Op. filed an Answer to the Company's Second Amended Petition in Cause No. 25590; the Company filed an Answer to the Co-Op's. Amended Complaint in Cause No. 25899; and the Co-Op. filed a Reply to the second paragraph of the Company's Answer to the Amended Complaint.

'After notices were given and mailed as provided by law, public hearing was held in these causes on April 16, 1958, in the Rooms of the Commission in the State House in Indianapolis, with appearances as noted above.

'There were no protestants or intervenors.

'At the hearing on April 16, 1958, both parties proceeded on the basis that testimony and evidence already in the record in these causes would remain a part of the record; and this Commission, being composed of different personnel than that which heard the evidence previously submitted, has studied the entire transcript in these causes from the filing of the original Petition on August 26, 1954, to date. Further, at the hearing on April 16, 1958, the Company presented the oral testimony of two witnesses and introduced into the evidence Petitioner's Exhibit No. 2, which is the map attached to the Company's Second Amended Petition; and the Co-Op. presented the oral testimony of one witness. In addition, counsel for the Co-Op. read into the record Co-Op. Rehearing Exhibits A, B and C, being portions of the By-Laws of the Co-Op. The Assistant Public Counselor introduced, and there was admitted into the evidence, Public's Exhibit 1A, showing names of persons now receiving or who have previously received service from the Co-Op., the date service was applied for and the date service was installed.

'The Commission, having heard or studied all of the evidence, having read the Judgment and Decree...