Greensburg Water Co. v. Lewis

Citation189 Ind. 439,128 N.E. 103
Decision Date07 July 1920
Docket NumberNo. 23788.,23788.
PartiesGREENSBURG WATER CO. v. LEWIS et al., Public Service Commission.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Decatur County; John W. Craig, Judge.

Action by the Greensburg Water Company against Earnest I. Lewis and others, constituting the Public Service Commission. From a judgment dismissing the complaint after the sustaining of a demurrer thereto, plaintiff appeals. Reversed, with instructions to overrule the demurrer and for further proceedings not inconsistent with the opinion.

George W. Bruce, of Greensburg, for appellant.

Ele Stansbury and E. M. White, both of Indianapolis, and Frank Hamilton, of Greensburg, for appellees.

LAIRY, J.

This action was brought by appellant in the Decatur circuit court under the provisions of section 78 of an act concerning public utilities, creating a Public Service Commission, abolishing the Railroad Commission of Indiana, and conferring the powers of the Railroad Commission on the Public Service Commission, approved March 4, 1913. Acts 1913, p. 167 (Burns' 1914, § 10052z2). The relief which appellant sought to obtain was a judgment setting aside an order of the Public Service Commission of Indiana entered on April 23, 1920, on the ground that such order of the commission was unlawful, in that it was made without authority of law and was violative of the constitutional rights of appellant.

[1] Appellees addressed a demurrer to the complaint on the ground that the court was without jurisdiction, and on the further ground that the complaint did not state facts sufficient to constitute a cause of action. The trial court sustained appellees' demurrer to the complaint. After showing the ruling of the court on the demurrer, the exception of appellant, and its election to abide by the ruling on demurrer, the order book entry proceeds as follows:

“And now the court finds for the defendant, that the plaintiff take nothing in this action and that the defendant recover of and from the plaintiff the costs of this action, taxed at - dollars and - cents.”

Appellees assert that the entry does not show a final judgment from which an appeal lies, and ask that the appeal be dismissed on that ground. It is apparent that the court, by the order quoted, intended to make a final disposition of the case as to all of the parties thereto. The language of the order book entry is not as apt and accurate as might have been employed to express the purpose and meaning intended, but, nevertheless, the purpose is clear. The word “finds,” as denoting the action of the court, is used instead of “orders,” or “adjudges,” as usually employed in the rendition of judgments; but this is clearly the inadvertent use of a word. There were no facts to be found upon which a judgment could be based, and it is therefore clear that the court was not intending to make a finding to be followed by a judgment. The entry is sufficient to show a final disposition of the case in favor of appellees and a judgment for costs against appellant. State ex rel. v. Lung (1907) 168 Ind. 553, 80 N. E. 541; Matter v. Campbell, Treasurer, 71 Ind. 512;Kern v. Saul (1895) 14 Ind. App. 72, 42 N. E. 496.

[2] In support of the court's ruling on the first ground of demurrer, appellees assert that the complaint is insufficient to invoke the jurisdiction of the court, for the reason that it does not show that appellant had exhausted the remedies available before the commission before resorting to the court for relief. Appellees take the position that proper practice under the act cited required appellant, after the order was made, to file a motion for a rehearing or a motion to modify the order, and in case such relief was denied by the commission he might then resort to the courts for relief, but not before taking the steps indicated. In support of their position appellees cited the following cases from this court: Chicago, etc., Co. v. Railroad Commission, 175 Ind. 402, 95 N. E. 364;Vandalia, etc., Co. v. Railroad Commission, 182 Ind. 382, 101 N. E. 85;Northern, etc., Co. v. People's, etc., Co., 187 Ind. 486, 119 N. E. 212;Southern, etc., Co. v. Railroad Commission, 172 Ind. 113, 87 N. E. 966.

All of the cases cited except one involve questions relating to appeals under the provisions of the Railroad Commission Act. The section of the Railroad Commission Act relating to appeals, as amended in 1913, provides that any party who is dissatisfied with any final order of the commission may, within 20 days after the entry thereof, file a petition for rehearing, specifically stating therein the grounds or reasons for such rehearing, and that within 20 days after the ruling on such petition for rehearing such party may begin an action against the commission in any court of competent jurisdiction in any county into or through which such carrier operates, to suspend or set aside such order. Burns' 1914, § 5536.

The Public Utilities Commission Act does not contain this provision, or any provision similar in meaning or effect. There is no provision which expressly grants to a party aggrieved by a final order of the commission the right to file a motion for a rehearing, or that expressly confers on the commission any power to grant rehearings on motion of a party aggrieved by a final order. The attention of the court is called to section 76 of the act, which is section 10052x2, Burns' 1914. This section provides that the commission may at any time, upon notice to the public utility and after opportunity to be heard as provided in sections 57 and 71, rescind, alter, or amend any order fixing any rate or rates, tolls, charges, or schedules, or any other order made by the commission, and certified copies of the same shall be served and take effect as herein provided for original orders. This section cannot be fairly construed as conferring on a party aggrieved by a final order the right to file a petition for a rehearing as preliminary to an action in court to rescind or set aside a final order of the commission. It will be observed that there is nothing in the section to indicate that such action of the board may be invoked by motion or petition of either party, and that no time is fixed within which a motion or petition may be filed, if it be assumed that such action may be so invoked. The board is free to take action, as contemplated by this station, at any time after a final order is entered.

Section 78 of the act provides, in substance, that any public utility and any person or corporation in interest, who may be dissatisfied with any order of the commission designated in the section, may commence an action in the circuit or superior court of any county in which such order is operative against the commission as defendant, to set aside such order or to enjoin the enforcement thereof on certain grounds stated in the section. Section 79 limits the time within which such an action may be brought to 60 days after the entry or rendition of such order or determination, and expressly provides that the right to commence any such action, proceeding, or suit, or to exercise any right of recourse to the courts, shall terminate absolutely at the end of such 60 days. Burns' 1914, § 10052a3. It thus appears that the right to bring an action by the party thinking himself aggrieved by an order of the board accrues on the rendition of such order and terminates absolutely 60 days thereafter. The proviso to this section applies to cases where a final order made by the commission has been set aside by the commission in granting a petition for a rehearing and another order entered after such rehearing. The proviso limits the right of recourse to the courts under such circumstances to 30 days after the final determination by the commission after such rehearing.

Construing these sections of the statute together, it is apparent that the time for beginning an action in the courts by the party aggrieved by a final order of the commission begins to run from the date of the entry of the order, and that it expires in 60 days thereafter, except as otherwise limited by the proviso to section 79. The act under consideration does not require that a motion for a rehearing should be filed and passed on by the commission as a condition precedent to the right of the aggrieved party to resort to the courts for relief.

Appellees call the attention of the court to the fact that the cases cited in support of their contention arose under the Railroad Commission Act prior to the amendment of that act in 1913, and that the specific provisions with reference to filing a motion for a new trial as a prerequisite to a resort to the courts, contained in the section of that act heretofore quoted, were not embodied in the act at the time those cases arose. It is asserted that prior to the amendment of 1913 the provisions of the Railroad Commission Act, with reference to the right of an aggrieved party to resort to the courts for relief, were very similar to the provisions on the same subject as found in the act here under consideration, and that for the reason stated those decisions should be given weight in deciding the question here involved. Without attempting to differentiate the provisions of the act under consideration from those of the Railroad Commission Act as it existed prior to the amendment of 1913, it may be said that the decisions of the court rendered under that act, on which appellees rely, do not sustain the proposition for which they contend in this case. None of the cases cited expressly decide that an action could not be brought, under the provisions of the act, to set aside an order of the commission until after a motion for a rehearing had been filed and passed on by the board; and none of the cases cited can be construed as holding that there was a want of jurisdiction in the trial court or in this court on appeal.

A study of those cases will disclose that the orders which were attacked were not invalid...

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23 cases
  • City of Logansport v. Pub. Serv. Comm'n , 25389.
    • United States
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    ...sections 101 and 102 limit the application of the law in the manner contended for by appellant. [15] In Greensburg Water Co. v. Lewis (1920) 189 Ind. 439, 128 N. E. 103, 107, it was said: “By sections 101 and 102 of the act *** the state of Indiana made a proposal to the public utilities of......
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