Decatur County Rural Elec. Membership Corp. v. Public Service Co.

• Decision Date: 06 December 1971
• Docket Number: No. 369A47,No. 1,369A47,1
• Citation: 28 Ind.Dec. 128,150 Ind.App. 193,275 N.E.2d 857
• Parties: DECATUR COUNTY RURAL ELECTRIC MEMBERSHIP CORPORATION, Appellant, v. PUBLIC SERVICE COMPANY of Indiana, a Corporation, Greensburg Colonial Manor Apartments, Inc., Appellees
• Court: Indiana Appellate Court

Page 857

275 N.E.2d 857

150 Ind.App. 193

DECATUR COUNTY RURAL ELECTRIC MEMBERSHIP CORPORATION, Appellant, v. PUBLIC SERVICE COMPANY of Indiana, a Corporation, Greensburg Colonial Manor Apartments, Inc., Appellees.

No. 369A47.

Appellate Court of Indiana, Division No. 1.

Dec. 6, 1971.

Hubert E. Wickens, Don Hubert Wickens, Greensburg, for appellant; Willett H. Parr, Jr., Lebanon, of counsel.

Greg K. Kimberlin, Duejean C. Garrett, Plainfield, for appellees; Sharpnack, Bigley & Jurgemeyer, Columbus, of counsel.

BUCHANAN, Judge.

STATEMENT OF THE CASE AND FACTS--This is an appeal from a Permanent Injunction prohibiting Appellant, Decatur County Rural Electric Membership Corporation (Decatur) from rendering electric service to a 4.5 acre tract (Property) recently annexed to the City of Greensburg, Indiana, which had previously been served by Appellee, Public Service Company of Indiana (Company).

On July 21, 1967 Decatur filed in the Decatur Circuit Court a Complaint requesting a restraining order, temporary injunction, and permanent injunction, which sought to prevent the Company from constructing electrical facilities or rendering electric service to the Property. The Company then filed a similar Complaint and the two causes were consolidated. After an evidentiary hearing, the trial court denied Decatur's prayer for temporary injunction and granted the request of the Company for temporary relief.

Several months later, the trial court entered its Special Findings of Fact and Conclusions of Law and a judgment thereon permanently restraining and enjoining Decatur from constructing a system for furnishing electric service to the Property.

Subsequently, Decatur filed a Motion for New Trial, which Motion was overruled by the court on December 16, 1968. Decatur appeals from this ruling.

The Special Findings of Fact of the trial court may be summarized in pertinent parts as follows:

Prior to annexation of the Property, it was a part of a larger tract known as the Peters Farm, and was adjacent to the City of Greensburg. The Company has, since before the incorporation of Decatur, served the Peters Farm with electric energy and does so now. Decatur has never provided electric energy and has no facilities used and useful for the rendering of electric service in the Property. The Company serves electric energy to all customers immediately west of the Property from a primary distribution line constructed in 1950, the terminus of which is approximately 300 feet from the Property. The Company could have served the Property from the primary distribution line constructed in 1950.

Both Decatur and the Company serve electric energy to customers east of the Property from primary distribution lines constructed by the Company in 1966 and by Decatur in 1953.

The primary distribution lines of the Company were constructed without the consent of Decatur but it made no protest concerning such construction.

On or about July 12, 1967, at the request of the owners of the Property, the Company extended its facilities located in the Lee Addition immediately south of the Property in order to render electric service to the Property.

Decatur threatened to and would have, unless restrained by the court, entered onto the Property for the purpose of rendering electric service.

The court further found that the Company did not have an adequate remedy at law under the facts stated in its Complaint, and that Decatur did have an adequate remedy at law for any damages it might incur under the facts alleged.

ISSUES--Various issues are raised by the parties, but the essential issue is which party had the right to serve the Property.

The Company asserts that:

(1) the right to serve the Property was excluded from Decatur's original territory;

(2) the Company has always served the Peters Farm of which the Property was a part.

Decatur's argument is that:

(1) the Property was not excluded from Decatur's service territory;

(2) the only part of the Peters Farm served by the Company was the farmhouse;

(3) there is no evidence that the Company could have served the Property from the Company's line to the Peters farmhouse.

It is apparent from the record in this case that the parties to this dispute as to which of them has the right to provide electric service to the Property have not sought relief before the Public Service Commission of Indiana (Commission) before invoking equity jurisdiction.

If a question of failure to pursue statutory remedies is posed, such 'a failure to so comply with the procedure set forth in the statute is jurisdictional, * * *.' Monon R. Co. v. Citizens of Sherwood Forest Addition, Marion County, (1970) Ind.App., 257 N.E.2d 846, 850. To the same effect is City of Fort Wayne v. Bishop, (1950) 228 Ind. 304, 92 N.E.2d 544:

'Where the legislature creates a right and prescribes the method whereby the right may be enforced the statutory remedy so provided is exclusive. Lang v. Scott (1825), 1 Blckf. 405, 435, 12 Am.Dec. 257; Ryan et al. v. Ray et al. (1886), 105 Ind. 101, 106, 4 N.E. 214; Wilmont v. City of South Bend (1943), 221 Ind. 538, 543, 48 N.E.2d 649; Ettinger v. Robbins (1945), 223 Ind. 168, 59 N.E.2d 118; Hinkle v. Howard (1947), 225 Ind. 176, 178, 73 N.E.2d 674, 675; New York, Chicago and St. Louis Railroad Company v. Zumbaugh (1895), 12 Ind.App. 272, 279, 39 N.E. 1058; Board of Comrs. v. Adler et al. (1922), 77 Ind.App. 296, 300, 301, 133 N.E. 602; * * *.'

If the legislature has provided a remedy, courts have no jurisdiction over the subject matter until such time as those remedies are exhausted or denied. Any such decision is immediately reviewable under the provisions of I.C. 1971 8--1--3--1, Ind.Ann.Stat. § 54--443 (Burns 1971), which reads in part:

'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 of Indiana for errors of law under the same terms and conditions as govern appeals in ordinary civil actions, * * *.'

See also Citizens Gas & Coke Utility v. Sloan, (1964) 136 Ind.App. 297, 196 N.E.2d 290; Warren v. Indiana Telephone Co., (1940) 217 Ind. 93, 26 N.E.2d 399.

Under the new Rules of Civil Procedure adopted January 1, 1970, the question of jurisdiction over the subject matter is usually raised either in a consolidated motion before answer or by the answer itself if no such motion is used. See Rule TR. 12. However, this defense is available at any time before final decision and in any manner, and if not raised by a party it is our duty, sua sponte, to raise and determine it. Bohannan v. Bohannan (1961) 132 Ind.App. 504, 167 N.E.2d 717; State ex rel. Ayer v. Ewing, Judge, (1952) 231 Ind. 1, 106 N.E.2d 441; Harvey's Indiana Practice, Vol. 1, pp. 604--608. Unlike jurisdiction over the particular case, subject-matter jurisdiction cannot be imposed by mutual consent or waived. Indiana Real Estate Commission v. Blue, (1963) 135 Ind.App. 121, 190 N.E.2d 32; State ex rel. Standard Oil Co. v. Review Board of Indiana Employment Sec. Div., (1951) 230 Ind. 1, 101 N.E.2d 60.

Thus, sua sponte, we deem the real issue to be:

Did the trial court have proper jurisdiction over the subject matter of the action to invoke its permanent equity power in light of existing statutory remedies?

DECISION--It is our opinion that the parties to this appeal did not exhaust their administrative remedies and, therefore, the trial court did not have subject-matter jurisdiction to invoke permanent equity.

The standard by which to measure compliance with statutory remedies has been defined in Public Service Commission of Indiana et al. v. City of Indianapolis, (1956) 235 Ind. 70, 83, 131 N.E.2d 308:

'However, where the statute provides for a procedure for such review or for a judicial remedy, it excludes any common law or equitable procedure to the extent such statutory provisions are addquate in protecting and preserving such substantive rights guaranteed by the constitution, the statutes or general principles of law. Such statutory procedure must be followed at least to the extent of the remedy available before resort is made to any common law or equitable remedy. Ballman v. Duffecy, supra (1952), 230 Ind. 220, 102 N.E.2d 646; Joseph E. Seagrams & Sons v. Board of Com'rs (1943), 220 Ind. 604, 45 N.E.2d 491; State ex rel. White v. Hilgemann Judge (1941), 218 Ind. 572, 34 N.E.2d 129; Warren v. Indiana Telephone Co. (1940), 217 Ind. 93, 26 N.E.2d 399.' (Emphasis supplied.)

Note the words 'at least to the extent of the remedy available before resort is made to any * * * equitable remedy.' Before a court may take subject-matter jurisdiction over a class of cases for which a statutory remedy exists, it must be shown that the statutory provisions are inadequate in protecting and preserving substantive rights. The parties are silent on this point. No showing is even attempted as to why the administrative road is not traveled prior to seeking equity.

We recognize that the Commission is without jurisdiction unless such is conferred upon it by applicable statutes. Meyers v. Evansville Water Works Dept., (1970) Ind.App., 261 N.E.2d 88.

The power and authority of the Commission to determine as to which one of two utilities has the right to provide electric service to a given area emanates from two sections of the Public Service Commission Act. ¹ The first section is I.C. 1971 8--1--2--54, Ind.Ann.Stat. § 54--408 (Burns 1951), and reads as follows:

'Complaints--Investigation and hearing.--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, * * *...