General Tel. Co. of Ind. v. Public Service Commission of Ind., 29547
| Decision Date | 24 November 1958 |
| Docket Number | No. 29547,29547 |
| Citation | 154 N.E.2d 372,238 Ind. 646 |
| Parties | , 27 P.U.R.3d 174 GENERAL TELEPHONE COMPANY OF INDIANA, Inc., Appellant, v. PUBLIC SERVICE COMMISSION OF INDIANA et al., Appellees. |
| Court | Indiana Supreme Court |
John F. Bodle and Michael T. Ricks, of Sturat, Devol, Branigin & Ricks, Lafayette, Hickam & Hickam, Spencer, for appellant.
Edwin K. Steers, Atty. Gen., James B. Sparks, John O. Moomaw, Bloomfield, Lloyd Wampler, Plymouth, for appellees.
Appellees' petition for rehearing calls our attention to an error of fact stated in the first opinion. We assumed there had been a territorial certificate issued to Midland. This error was induced by the failure of the briefs to include in the statement of the record the fact no such certificate had been issued to Midland, and the presumption indulged by this court that the Commission had acted within its statutory authority under § 54-601b, Burns' 1951 Replacement (Supp.). 1
This amendment to the Shively-Spencer Utility Commission Act of 1913 (Ch. 76 of the 1913 Acts) is hardly a work of art in the field of statutory draftsmanship, due to its lack of clarity, and it would unduly extend this opinion to set forth the amendment verbatim.
In construing the Act the law is well settled, as we noted in the original opinion, that the Public Service Commission 'derives its power and authority solely from the statute, and unless a grant of power and authority can be found in the statute it must be concluded the there is none.' Chicago & E. I. R. Co. v. Public Service Commission, 1943, 221 Ind. 592, 594, 49 N.E.2d 341. 2 Section 54-601b clearly distinguishes between a territorial certificate issued pursuant to the Act, and a municipal franchise or any indeterminate permit. 3
Under subsection (b) of § 54-601b, Burns', the Commission is not granted authority to issue a territorial certificate upon a voluntary report for area already being served by a utility, for the Act of 1951 governing the issuance of a certificate on a voluntary report states:
'* * * The commission shall have the power to issue to each such company for any territorial area or areas so reported and not covered by a municipal franchise or any indeterminate permit, a certificate of territorial authority. The certificate shall determine and define the area or areas in which each such company shall thereafter render telephone service. * * *
'After the issuance of such certificate no other telephone company shall render telephone service in the area or areas so determined and defined, except pursuant to a certificate granted by the commission, after notice of hearing and hearing, that public convenience and necessity require that telephone service in any such area be rendered or offered by another company. Any telephone company, without a prior order by the commission, may voluntarily file with the commission a report of the territorial area or areas and the boundaries thereof within the state in which it renders, is reasonably prepared to render, and proposes to render telephone service within a reasonable time. Upon the filing of such voluntary report the commission shall have the power to issue its certificate of territorial authority to such company in like manner and with like effect as if such report had been required by order of the commission as hereinabove provided for in this section.
'Nothing contained herein or in any such certificate shall be construed to require any telephone company to cease rendering any telephone service in any territorial area being served by such telephone company prior to the issuance of such certificate or to require any telephone company to render telephone service in any portion of any territorial area in which such telephone company does not render and does not propose to render telephone service.' (Italics added.) Acts 1951, Ch. 158, pp. 410, 411.
When the Commission declared the area served by Midland to be 'opon territory' it did not use any term we can find employed in the 'Public Service Commission Act,' as the Shively-Spencer Act is now known. The only possible authority for using the term is contained in subsection (d) of § 54-601b, Burns', which is limited to cases where a certificate of territorial authority had been issued, as appears from the following:
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