Monon R. Co. v. Citizens of Sherwood Forest Addition, Marion County, 1268A218

• Decision Date: 27 April 1970
• Docket Number: No. 1268A218,1268A218
• Citation: 146 Ind.App. 620,257 N.E.2d 846
• Court: Indiana Appellate Court
• Parties: The MONON RAILROAD COMPANY, Appellant, v. CITIZENS OF SHERWOOD FOREST ADDITION, MARION COUNTY, Indiana, Appellees.

Page 846

257 N.E.2d 846

146 Ind.App. 620

The MONON RAILROAD COMPANY, Appellant, v. CITIZENS OF SHERWOOD FOREST ADDITION, MARION COUNTY, Indiana, Appellees.

No. 1268A218.

Appellate Court of Indiana, En Banc.

April 27, 1970.

Thomas Michael Quinn, Jr., Clark & Clark, Indianapolis, for appellant.

Robert H. Reynolds, Barnes, Hickam, Pantzer & Boyd, Indianapolis, for appellees.

PER CURIAM.

This matter is before us on the Order of the Supreme Court of Indiana, remanding this cause to this Court for an opinion setting forth the reasons for our previous Order of July 1, 1969, which dismissed this cause of action.

This is an appeal from the Public Service Commission of Indiana, in which the appellant was a respondent and the appellees were petitioners. The original petition was filed by the appellees with the Public Service Commission on November 13, 1967. The petition sought to have the appellant, Monon Railroad, and the Marion County Commissioners, required to install automatic warning signals at the intersection of the Monon Railroad track and 91st Street in Marion County, Indiana.

The record reveals the following sequence of events:

1. On June 28, 1968, the Public Service Commission entered its order which required the appellant to install automatic, train-activated flashing warning signals at the grade crossing of 91st Street and the track of Monon Railroad Company.

2. On July 15, 1968, the appellant filed a petition with the Public Service Commission of Indiana for an extension of time to file petition for reconsideration of the Order entered June 28, 1968.

3. On July 18, 1968, the appellant filed its petition for reconsideration and requested additional time within which to file its brief in support of said petition.

4. On July 26, 1968, the Public Service Commission of Indiana entered its order granting appellant additional time until September 18, 1968, to file its brief in support of the petition for reconsideration. On September 20, 1968, the Commission granted the appellant further time, to and including October 18, 1968, within which to file its said brief. On October 18, 1968, the Commission again granted the appellant additional time within which to file its said brief to and including October 28, 1968. On October 28, 1968, the additional time granted the appellant to file its said brief expired without the appellant having filed its brief.

5. On November 1, 1968, the Public Service Commission of Indiana entered its order on the appellant's petition for reconsideration, stating therein that the appellant had failed to file briefs in support of its petition for reconsideration as required in its prior order of October 18, 1968, and denying the appellant's petition for reconsideration.

6. On November 6, 1968, the appellant filed with the Commission another petition for extension of time within which to file its brief in support of its petition for reconsideration.

7. On November 20, 1968, appellant filed its said brief in support of the petition for reconsideration.

8. On November 27, 1968, the Commission entered its further order wherein it sustained as approved its previous order of November 1, 1968, which had denied the appellant's petition for reconsideration.

9. On December 26, 1968, the appellant filed its Petition For Extension of Time Within Which to File its Transcript and Assignment of Errors, thus commencing this appeal.

The appellees contend in their Motion to Dismiss that the Order of the Commission dated November 1, 1968, denying the petition to reconsider, was the final order of the Commission; that the Commission's later order of November 27, approving its earlier order was a nullity; that the time within which to appeal the Order of November 1, 1968, expired on December 1, 1968; that the assignment of errors and transcript were not filed within the time allowed and neither was the appellant granted an extension of time within which to file its assignment of errors and transcript, and therefore this Court, pursuant to Supreme Court Rule 2--2 and to Burns' Indiana Statutes, § 54--444, did not acquire jurisdiction over this appeal.

The appellees further contend that after the Commission entered its Order of November 1, 1968, denying the petition for reconsideration, that it had no further jurisdiction in the matter and the appellant's exclusive remedy was an appeal to this Court pursuant to the provisions of Burns' Indiana Statutes, § 54--443 et seq.

The pertinent statutes are as follows:

'54--443. Appeal to Appellate Court from final decision, ruling or order of commission--Transfer to Supreme Court--Assignment of errors.--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, except as otherwise herein provided, and with the right in the losing party or parties in the Appellate Court to apply to the Supreme Court for a petition to transfer the cause to said Supreme Court as in other cases. An assignment of errors that the decision, ruling or order of the commission is contrary to law shall be sufficient to present both the sufficiency of the facts found to sustain the decision, ruling or order, and the sufficiency of the evidence to sustain the finding of facts upon which it was rendered.

'54--444. Petition for rehearing--Effect on appeal.--If a petition for rehearing is filed with the commission by any party to the proceeding before the commission, within the time allowed by the rules of the commission, and prior to the filing of the commission record with the clerk of the Supreme and Appellate Courts, the right to appeal to the Appellate Court as herein provided shall terminate thirty (30) days after the determination by the commission of (on) such petition for rehearing. The appeal shall not be submitted prior to that determination of the petition for rehearing, and the decision of the commission on said petition shall not be assigned as error unless the final decision, ruling or order of the commission is modified or amended thereby, without further hearing ordered.' (our emphasis).

We do not find in the statute any authority for the Commission to do any act or make any further orders after a petition for rehearing has been denied. The statute clearly provides that after the Commission has made a determination on a petition for rehearing, the right to appeal said determination shall terminate 30 days after the determination. There is nothing in the statute which provides for any action by the Commission to extend the expiration of the statutory period for appeal. The Commission has no powers except those conferred by statute. Sizemore et al. v. Public Service Comm. (1961), 133 Ind.App. 51, 61, 177 N.E.2d 743; Reh. Den. 178 N.E.2d 557, Trans. Den. 242 Ind. 498, 180 N.E.2d 232; Indiana Telephone Corp. v. Public Service Commission of Indiana (1960), 131 Ind.App. 314, 340, 171 N.E.2d 111; Chicago & E.I.R. Co. v. Public Service Comm. (1943), 221 Ind. 592, 49 N.E.2d 341; New York Central R. Co. v. Public Service Comm. (1922),191 Ind. 627, 134 N.E. 282.

In the case of State ex rel. Mid-West Insurance Company v. Superior Court of Marion County, et al. (1952), 231 Ind. 94, 99, 106 N.E.2d 924, 926, our Supreme Court, speaking concerning the powers of the Department of Insurance, stated:

'The Department of Insurance is a statutory department whose only powers are those granted by the statute. The rule is well settled that 'unless a grant of power and authority can be found in the statute it must be concluded that there is none.' Chicago & E.I.R. Co. v. Public Service Comm., 1943, 221 Ind. 592, 594, 49 N.E.2d 341. See also State ex rel. Young v. Niblack, 1951, 229 Ind. 596, 99 N.E.2d 839; Davis v. Pelley, 1952, 230 Ind. 248, 102 N.E.2d 910.'

In the case of Ballman v. Duffecy (1952), 230 Ind. 220, 229, 102 N.E.2d 646, 650, our Supreme Court stated as follows:

'This court has held that the inherent right to a review of an order of an administrative board or commission is not statutory, but a right under the Indiana Constitution. Warren v. Indiana Telephone Co., 1940, 217 Ind. 93, 26 N.E.2d 399; Joseph E. Seagram & Sons v. Board of Com'rs, etc., 1943, 220 Ind. 604, 45 N.E.2d 491. However, where the statute provides the remedy of a review, and the procedure to be followed, the procedure must be complied with. In the case at bar the procedure for review does not prohibit the remedy of review by the court, and is not in violation of the Constitution.

'This court has heretofore said that a court in acquiring jurisdiction must not only have jurisdiction of the parties and the general subject of the controversy respecting real property, but must have jurisdiction of the subject matter of the particular case. State ex rel. Ferger v. Circuit Court, 1949, 227 Ind. 212, 84 N.E.2d 585; Jackson v. Smith, 1889, 120 Ind. 520, 22 N.E. 431. A failure to comply with the statute is jurisdictional, and therefore the trial court did not have jurisdiction of the parties or the particular case. The court has inherent power to order a dismissal of an action of which it has no jurisdiction. Miedreich v. Rank (et al.) 1907, 40 Ind.App. 393, 82 N.E. 117. The motion to dismiss was proper.' (our emphasis)

In the case of Public Service Commission of Indiana, et al. v. City of Indianapolis (1956), 235 Ind. 70, 83, 131 N.E.2d 308, 313, the Supreme Court stated:

'It is established law in this state that there is an inherent right to appeal to the courts for relief against the violations of personal or property rights as a result of administrative action. The legislature may not absolutely deprive one of such relief or judicial review. However, where the...