Knox County Rural Elec. Membership Corp. v. Public Service Co. of Ind.

• Decision Date: 01 February 1966
• Docket Number: No. 19942,19942
• Citation: 139 Ind.App. 547,213 N.E.2d 714
• Parties: KNOX COUNTY RURAL ELECTRIC MEMBERSHIP CORPORATION, a Corporation, Appellant, v. PUBLIC SERVICE COMPANY OF INDIANA, Inc., a Corporation, Appellee.
• Court: Indiana Appellate Court

Page 714

213 N.E.2d 714

139 Ind.App. 547

KNOX COUNTY RURAL ELECTRIC MEMBERSHIP CORPORATION, a Corporation, Appellant, v. PUBLIC SERVICE COMPANY OF INDIANA, Inc., a Corporation Appellee.

No. 19942.

Appellate Court of Indiana, In Banc.

Feb. 1, 1966.

Rehearing Denied April 4, 1966.

[139 INDAPP 548] Parr, Parr, Parr & Richey, Lebanon, Shake & Shake, Vincennes, for appellant.

Hubert E. Wickens, Indianapolis, for Decatur County Rural Electric Membership Corp., Southeastern Indiana Rural Electric Membership Corp., Dubois Rural Electric Co-Operative, Inc., and Indiana Statewide Rural Electric Cooperative, Inc., amici curiae.

Paul G. Jasper, Greg K. Kimberlin, Plainfield, Gray & Waddle, Petersburg, Emison & Emison, Vincennes, for appellee.

HUNTER, Judge.

On December 5, 1959, Public Service Company of Indiana, Inc., appellee (hereinafter referred to as Company) filed its complaint in two paragraphs against Knox County Rural Electric Membership Corporation (hereinafter referred to as Knox REMC). The action was brought on account to collect for a so-called 'Rate B' charged for electrical energy furnished by the Company to Knox REMC during the period of February 1 to August 23, 1957. The action was filed under purported authority of an order of the Public Service Commission of Indiana dated December 14, 1956 effective February 1, 1957.

[139 INDAPP 549] Trial was had by the court without the intervention of a jury, and the only evidence tendered and considered was stipulated and consisted solely of exhibits. The court entered judgment for the appellee company against the appellant Knox REMC on both paragraphs of the complaint in the total amount of $8,158.32 with interest at the rate of 6% per annum. Said judgment included sums on account for the 'Bruceville connection' under Paragraph I and the 'Poseyville connection' under Paragraph II of said complaint.

The judgment was predicated upon the application of Rate B as set forth in a certain Commission order of December 14, 1956.

The sole error assigned is that the trial court erred in overruling appellant's motion for a new trial. The two specifications of the motion for a new trial were as follows:

(1) The decision of the court is contrary to law, and

(2) the decision of the court is not sustained by sufficient evidence.

It is abundantly clear that both specifications of error present a question of law and are combined and supported by one argument.

The appellee seeks to criticize the appellant's statement of the record in its brief as being too perfect for the reason that said statement includes a reproduction of the entire transcript, and urging therefor, that as such, it is not a concise statement of the record and is not in keeping with the spirit and letter of the Supreme Court rules governing this court on appeal. Nothing further needs be said about such criticism except to say that since all the facts in issue were stipulated, we need only look to the appellant's brief to ascertain the facts necessary to our determination of this appeal.

There were many disputed items in the hearings before the Commission and the Hendricks Circuit Court. However, the question of a raise in the Company's overall revenue was the [139 INDAPP 550] subject and purpose of the various hearings conducted. All questions pertinent to the rate increases growing out of said hearings were completely litigated and were adjudicated finally by the Hendricks Circuit Court and the Supreme Court in the case of Boone County REMC v. Pub. Serv. Comm. of Ind. (1959), 239 Ind. 525, 159 N.E.2d 121.

Therefore, all the Commission's findings and orders pertaining to rate increases as revealed by the record herein may be summarized as follows:

(a) March 9, 1956 the Commission reported that it then found the appellee Company entitled to an increase in its rates;

(b) March 21, 1956 the Commission authorized a 5.35% across the board increase, by way of surcharge, on all customers, pending the fixing of final rates;

(c) December 14, 1956 the Commission approved a schedule of rates filed by the Company and directed the establishment of Rate B, the penalty provision, applicable to sales to REMCs for resale to industrial or commercial power users having a demand of 250 KW or more. Said rates became effective under said order as of February 1, 1957.

(d) August 19, 1956 on appeal by the Boone County REMC and others, the Hendricks Circuit Court ordered the matter back to the Commission for its further consideration.

(e) August 23, 1957 the Commission changed the order which became the final order and in so doing eliminated Rate B from the order and stating in effect that there was insufficient evidence upon which to predicate and justify the establishment of said penalty rate.

(f) December 19, 1957 the Hendricks Circuit Court approved the amended, changed and modified Commission order of August 23, 1957 as set forth in (e) above.

The Hendricks Circuit Court in so doing, in its final approval, stated that there was only one order before the court, the same being the order of August 23, 1957, and that the [139 INDAPP 551] order was changed in one respect only and that was by eliminating Rate B.

The Supreme Court of Indiana in an appeal from said Hendricks Circuit Court in said case of Boone County REMC v. Pub.Serv. Comm. of Ind., supra, stated:

'While reference is made to the separate orders, there is, in fact, but a single final order which embodies the various modifications during the proceedings. Burns' 1951 Repl. Sec. 54-437.' (our emphasis)

And the Court concluded in the same opinion as follows:

'The judgment and discretion exercised by the Commission in arriving at its final orders of March 9 and 21, 1956 and December 14, 1956 (as modified on August 23, 1957) are supported by the evidence and not contrary to law.' (our emphasis)

The Commission finding of March 9 and subsequent order of March 21, 1956, referred to in (a) and (b) above, created a 5.35% across the board increase as an over-all charge to all the Company's customers including REMC's pending the fixing of final rates. The Commission order of December 14, 1956 established a schedule of rates for residential and domestic sales, farm and rural sales, and REMC's including in the latter Rate B. The order of August 23, 1957(e) above completely eliminated the so-called Rate B from the Commission order of December 14, 1956(c) above. Thus, it appears from the record that the December 14, 1956 order remained in effect and unchanged by the order of August 23, 1957, except as modified thereby in the elimination of Rate B.

Therefore, the sole question presented by this appeal may be simply stated as follows: Was Rate B a valid penalty charge enforceable by the Company against Knox REMC from February 1, 1957 to August 23, 1957?

The appellant contends that there was no valid order existing upon which the Company could assert a right to said [139 INDAPP 552] penalty Rate B. Although since repealed Secs. 54-436 and 54-437, at the time in question, provided for the commencement of an action in any circuit court of any county in which the utility operated to vacate or set aside a decision, ruling, order or determination of the Commission. The disputed orders including the December 14, 1956 order were challenged in the Hendricks Circuit Court pursuant to the provisions of the then existing statute.

All steps in the hearing procedures before the Commission and the Hendricks Circuit Court were taken pursuant to the following sections of the statute:

'Burns 54-436--If, upon the trial of such action, evidence shall be introduced which is found by the court to be materially different from that offered upon the hearing before the commission, the Court before proceeding to render judgment, unless the public service commission shall, in writing, waive the necessity, shall transmit a copy of such materially different evidence to the commission and shall stay further proceedings in said action for fifteen (15) days from the date of such transmission. Upon the receipt of such evidence the commission shall consider the same and may, in any manner, change its decision, ruling, order determination, requirement or direction complained of in said action, and shall report its action thereon to said court within ten (10) days from the receipt of such evidence.'

'Burns 54-437--If the commission shall so report that it has rescinded its decision, ruling, order, determination, requirement or direction complained of, the court shall thereupon dismiss the action; if the commission shall so report that it has otherwise changed its action the changed or amended decision, ruling, order, determination, requirement or direction shall take the place of the original decision, ruling, order, determination, requirement or direction complained, and judgment shall be rendered thereon as though made by the commission in the first instance. If the original action of the commission complained of be not rescinded or changed by the commission, judgment shall be rendered upon such original decision, ruling, order, determination, requirement or direction.' (our emphasis)

The appellant asserts that the Commission's order of August 23, 1957 changed and modified its order of December 14, 1956 [139 INDAPP 553] by eliminating Rate B; further, that Sec. 54-436, supra, then in force gave the Commission express, plain and clear authority to reconsider its order of December 14, 1956; that Sec. 54-437, supra, provided that 'the changed or amended' order of August 23, 1957 (e) above 'shall take the place of the original order' of December 14, 1956 (c) above 'and judgment shall be rendered thereon as though made by the Commission in the first instance'. (f) above.

The appellant's contention that there is no valid order in existence establishing Rate B is supported by the record. The Commission's order of August 23, 1957 directed the elimination of Rate B. A portion of said order as it...