In re Northwestern Indiana Tel. Co. , 25676.

• Decision Date: 14 April 1930
• Docket Number: No. 25676.,25676.
• Parties: In re NORTHWESTERN INDIANA TELEPHONE CO. et al.
• Court: Indiana Supreme Court

201 Ind. 667

171 N.E. 65

In re NORTHWESTERN INDIANA TELEPHONE CO. et al.

No. 25676.

Supreme Court of Indiana.

April 14, 1930.

Appeal from Lake Circuit Court; E. Miles Norton, Judge.

Petition by the Northwestern Indiana Telephone Company to sell, and the Winona Telephone Company and another to purchase, capital stock and assets of the first-named company, filed with the Public Service Commission, to which representatives of the City Council, the Chamber of Commerce, and a committee of citizens of the City of Valparaiso appeared in opposition. The Commission denied the petition, and petitioners appealed to the Circuit Court, where the cause was tried de novo on additional evidence which was then certified and transmitted to the Commission, whereupon the Commission reaffirmed its original order. From a judgment for petitioners thereafter rendered the Chamber of Commerce, the City Council, and the City of Valparaiso appeal.

Reversed with instructions.

Loring & Loring, of Valparaiso, for appellants.

Emmett F. Branch, of Martinsville, John Crumpacker, of Valparaiso, Goodrich & Emison, and Thompson, Rabb & Stevenson, all of Indianapolis, L. L. Bomberger, of Hammond, and W. H. Thompson, of Indianapolis, for appellees.

MYERS, J.

On August 17, 1927, a petition by the Northwestern Indiana Telephone Company to sell, and the Winona Telephone Company and Crown Point Telephone Company to purchase, the capital stock and assets of the Northwestern Indiana Telephone Company, was filed with the Public Service Commission of Indiana. Notice by publication and notice by mail to the mayor and city attorney of Valparaiso, as well as to the mayor and city attorney of other cities where petitioners were operating, was given of the filing and of the time and place when and where a hearing on the petition would be had. At the time so fixed the petitioners appeared by counsel, and in opposition to the petition persons representing the city council, the Chamber of Commerce, and a committee of citizens of the city of Valparaiso, by its attorney, appeared, and evidence was introduced both for and against the petition, which, together with additional evidence of 215 typewritten pages of the record, was before the Lake circuit court.

On December 16, 1927, the commission issued an order denying the petition, from which order petitioners took an appeal to the Lake circuit court, where the cause was again tried on the evidence theretofore introduced before the commission, together with additional evidence on the part of the petitioners and on the part of those designated by the court, City of Valparaiso et al., as remonstrators. This new and additional evidence was, upon order of the court, certified and transmitted to the Public Service Commission of Indiana for further consideration.

On June 6, 1928, after taking into account the additional evidence heard by the Lake circuit court, the commission reaffirmed its order theretofore made denying the petition, and caused its reasons for so doing to be certified to the Lake circuit court. On June 19th that court, on the hearing by it theretofore had, found that the order of the Public Service Commission in denying the petitions was unreasonable and unlawful, and not sustained by sufficient evidence, and that the prayer of the petitions should be granted. Judgment followed, ordering the Public Service Commission to approve and authorize the sale and purchase on the terms and stipulations set forth in the petition. On July 17th the city of Valparaiso, the city council of Valparaiso, and the Chamber of Commerce of Valparaiso filed a motion for a new trial, assigning as causes insufficient evidence to sustain the finding of the court, and finding of the court contrary to law. This motion was overruled, sixty days given for all bills of exceptions, and thirty days to file bond, all of which was done and approved by the court within the time allowed.

Our attention is first called to a motion to dismiss this appeal, and in support thereof eight reasons are assigned. The first three of these reasons may be considered together; as they all refer to the same general proposition that the parties prosecuting this appeal were not parties to the proceedings in the court below, and hence have no standing in an appellate tribunal.

[1] It must be kept in mind that this case in its inception was, in form, an ex parte proceeding (section 12767, Burns' Ann. St. 1926, Acts 1913, p. 167, c. 76, § 95, as amended by Acts 1925, p. 181, c. 54) before the Public Service Commission, a purely administrative board created by the state and by legislation given only administrative and ministerial powers. While it may be properly characterized as an administrative arm of the Legislature, yet it has no legislative authority. Article 4, § 1, Indiana Constitution. It may be termed an agent of the state charged with certain administrative duties, which, prior to the enactment of the law creating the commission, was, by the state, delegated to the state's municipalities or the political subdivisions of the state. State ex rel. v. Lewis, 187 Ind. 564, 569, 120 N. E. 129.

[2] Section 95, supra, makes no provision for, nor does it contemplate, the naming of adverse parties to the petition therein authorized to be filed. It does provide that the commission must withhold its approval of the petition until after a hearing. A reasonable interpretation of the statute requires that the commission shall fix a place when and where a hearing will be had upon the petition. This done, notice thereof must be given by publication in two newspapers of general circulation in the place where the hearing will take place. Acts 1927, p. 252, c. 96, § 8. The purpose of this notice is to advise the public generally, as well as all persons or corporations which may be affected by the relief asked in such petition, and to give them an opportunity to be heard to the end that the commission may be fully advised before acting. There is nothing in the law or rules of the commission, to our knowledge, expressly requiring an intervention on the part of an objector, as the practice would ordinarily demand in a court, as a condition precedent to the right of any person or number of persons, or of any corporation, to appear in person or by counsel before the commission for the purpose of objecting to or of advocating the relief prayed in the petition.

[3][4] The courts, in reviewing the work of the commission, must keep in mind that they only have to do with questions calling for judicial interpretation as distinguished from matters administrative. So long as the commission keeps within the field of regulative powers over the persons or entities over which it has jurisdiction, its orders and action with reference to such matters must be respected by the court. The presumption of good faith and valid orders by the commissionmust obtain until the contrary is made clearly to appear. Pittsburgh, etc., R. R. Co. v. Railroad Commission, 171 Ind. 189, 205, 86 N. E. 328. The work of the commission is that of regulation between the public and the public utilities operating in this state. In matters over which the commission has jurisdiction, the public, in the initiative steps, should be treated as one party and the utility as the other. We repeatedly hear the expression that it is the duty of the commission to represent the public alone. If, by this remark, it is meant that the commission is organized but for one purpose, that of antagonistic action toward utilities under any and all circumstances, then one of the great purposes of the law, adequate service by the utility at the least cost to the consumer, might be entirely defeated. The theory of the law creating the commission is that it shall be conscientiously and impartially administered by a body composed of a personnel especially qualified by knowledge, training, and experience pertaining to the subject-matter committed to it for award consonant with reasonable fairness and substantial justice according to legislative mandate, and the circumstances shown relative to its effect in the future on the utility's ability to serve the interest and convenience of the public; the cost and expense to the parties interested being an element for consideration.

[5] A public utility of Indiana, in whatever field engaged, is, by reason of its public quality, pledged to a frugal administration of its business and to furnish adequate service as a matter of public welfare and convenience, for which engagements, if strictly kept, the law forbids competitive service by other public utilities in territory already covered, except between competing companies thus engaged at the time the law became effective, other than the regulation of rates. Public Service Commission v. State ex rel., 184 Ind. 273, 111 N. E. 10. The Legislature has not prescribed a formal code of procedure to be followed by the commission in determining the facts as the basis for its order. Hence the manner in which a question over which it has jurisdiction may be presented to it, as also the method by which it may be advised to correct action, is left almost entirely to the commission. Formality is not required, nor is it essentially necessary in the foregoing respects to enable the commission to decide questions, as here, relating to public welfare and public convenience. Southern Ry. Co. v. Railroad Commission, 42 Ind. App. 90, 83 N. E. 721.

[6] Petitioners, in the matter here involved, assert that the prosecutors of this appeal have no legal interest in the controversy other than that of the public, represented by the Public Service Commission not a party to this appeal. The commission, acting in a regulatory capacity as between the public and the utilities here interested, is not a necessary party to an appeal, as we shall presently endeavor to show. It must judge of its powers and determine the question of its jurisdiction, and to this extent only...