Morgan County Rural Elec. Membership Corp. v. Indianapolis Power & Light Co.

• Decision Date: 13 March 1973
• Docket Number: No. 472A191,472A191
• Parties: MORGAN COUNTY RURAL ELECTRIC MEMBERSHIP CORPORATION, Defendant-Appellant, v. INDIANAPOLIS POWER & LIGHT COMPANY, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 237

293 N.E.2d 237

MORGAN COUNTY RURAL ELECTRIC MEMBERSHIP CORPORATION, Defendant-Appellant, v. INDIANAPOLIS POWER & LIGHT COMPANY, Plaintiff-Appellee.

No. 472A191.

Court of Appeals of Indiana, Third District.

March 13, 1973.

Rehearing Denied April 12, 1973.

H. Richard Miles, Martinsville, Par Richey, Obremskey, Pedersen & Morton Lebanon, for defendant-appellant.

Marcus E. Woods, Paul L. Butt, Charles M. Wells, Jon D. Noland, Barnes, Hickam, Pantzer & Boyd, Indianapolis, for plaintiff-appellee.

HOFFMAN, Chief Judge.

The issue presented by this appeal is one of first impression in this jurisdiction whether a municipally franchised utility may condemn property of another utility located within a parcel of land which has been annexed into a municipality pursuant to IC 1971, 18-5-10-30.1, Ind.Ann.Stat. § 48-727a (Burns 1972 Cum.Supp.).

Inasmuch as the above issue is one of law, the following simplistic explanation of the facts will here suffice:

On April 28, 1971, the Board of Trustees of the Town of Mooresville, Indiana, duly annexed to the town a noncontiguous parcel of land which was the site of the Kendrick Memorial Hospital. Thereafter, appellee-Indianapolis Power & Light Company (IPALCO) filed its complaint to condemn certain electric utility property located within the annexed territory. Defendant-Morgan County Rural Electric Membership Corporation (REMC) appeared by counsel and filed its objections to the complaint of plaintiff-IPALCO.

The trial court overruled the objections of REMC and entered its judgment that plaintiff is entitled to appropriate the property of defendant described in plaintiff's complaint and appointed appraisers to assess the damages that defendant had, or may, sustain by reason of such appropriation. On appeal, REMC assigns as error the decision of the trial court in overruling said objections and appointing appraisers.

Appellant-REMC first contends that the Public Service Commission of Indiana must determine whether public convenience and necessity should allow plaintiff to condemn the annexed territory. In support of this contention REMC cites Decatur County R.E. Mem. Corp. v. Public Service Co. (1971), Ind.App., 275 N.E.2d 857, 28 Ind.Dec. 128 (transfer denied). In that case, a certain parcel of property was annexed which had been served by the public utility since before the incorporation of the REMC. After annexation of the property the REMC sought to enter upon the property to render electric service. The utility sought injunctive relief to prohibit such service by the REMC. On appeal from the granting of a permanent injunction the Appellate Court remanded the case to the Public Service Commission to determine which company had the initial right to serve the property in question. At 862 of 275 N.E.2d, it is stated:

"Once the Commission makes its decision, the parties are free to proceed accordingly. If the Commission finds that the Property was included in Decatur's service territory, then the Company may proceed under I.C. 1971 8-1-13-19, Ind.Ann.Stat. § 55-4418a (Burns 1971), and condemn the annexed area. Any other questions concerning the impact and interpretation of Burns § 55-4418a must wait until that statute has been properly brought into play, and that cannot occur until it is determined which party had the initial right to service the Property. Conversely, if the Commission finds that the Property was excluded from Decatur's service territory, the matter is settled and Burns § 55-4418a has no effect." (Footnote omitted.)

The instant case bears no analogy to Decatur. The initial service right by REMC is undisputed. The instant case presents nothing for the Public Service Commission to determine.

The statute with which we are here concerned is IC 1971, 8-1-13-19, Ind.Ann.Stat. § 55-4418a (Burns 1972 Cum.Supp.), which provides, in pertinent part, as follows:

"Municipality annexing territory served by electric utility--Purchase of property--Condemnation.--Whenever a municipality in which a public utility *** is rendering electric utility service under a franchise, license or indeterminate permit ***, annexes additional territory and such annexed territory includes any territory in which the franchised utility was not authorized to render electric utility service immediately prior to such annexation but in which some other public utility *** was lawfully rendering electric utility service at such time, then the franchised utility and the other utility shall promptly negotiate for the purchase by the franchised utility of the property owned by the other utility within the annexed territory and used and useful by the other utility in or in connection with the rendering of electric utility service therein. In the event that such property has not been purchased by the franchised utility within 90 days after such annexation takes place, then the franchised utility may bring an action in the circuit or superior court of the county where such municipality *** is located against the other utility, as defendant, for the condemnation of such property of the other utility. Until and unless such purchase or condemnation is effected, the other utility shall have authority to operate within the portion of the annexed territory in which it was lawfully rendering electric utility service immediately prior to such annexation."

Although the above quoted statute is patently clear, REMC contends that legislative intent and public policy militate against permitting condemnation when territory is annexed pursuant to § 48-727a, supra.

In our desire to avoid the evil of judicial legislation we are properly motivated to construe statutes strictly. However, as judges, we should not be expected, or permitted, to be more naive than other men. A court would be remiss to close its eyes to a latent ambiguity in a statute created by legislative history, legislative purpose and the dictates of justice, for these are matters to be considered in interpreting any statute. Woods v. State (1957), 236 Ind. 423, 140 N.E.2d 752.

As stated by the eminent jurist Learned Hand,

"... there is no surer sign of a feeble and fumbling law than timidity in penetrating the form to the substance." Loubriel v. United States (2d Cir., 1926), 9 F.2d 807, at 808.

The primary rule for judicial construction of statutes is to ascertain and effectuate the intent of the Legislature. Roth v. Local Union No. 1460 of Retail Clerks Union (1939), 216 Ind. 363, 369, 24 N.E.2d 280. The intention of the lawmakers constitutes the law. Blackburn et al. v. Koehler, etc. (1957), 127 Ind.App. 397, 400 140 N.E.2d 763 (transfer denied).

Where the legislative intent is manifest by clear and unambiguous language, the obvious meaning of the language may not be enlarged or restricted. Knox R.E.M.C. v. Pub. Serv. Co. (1966), 139 Ind.App. 547, 557, 213 N.E.2d 714 (transfer denied). However, where more than one construction is possible, the court may give a statute a practical application and construe it in such a way as to oppose prejudice to public interest. State ex rel. Bynum v. LaPorte Superior Court No. 1 (1973), Ind., 291 N.E.2d 355.

The legislative intent as ascertained from the Act as a whole will prevail over the strict literal meaning of any term used therein. Combs, Auditor, et al. v. Cook (1958), 238 Ind. 392, 151 N.E.2d 144.

A matter found to be within the intention of the Legislature by implication has the same effect as if it were expressed in the statute. State v. Rice (1956), 235 Ind. 423, 134 N.E.2d 219. Even where the language of the statute is technically clear the courts may make minor substitutions where legislation, as enacted, was obviously not within the comprehension of the Legislature and the legislative intent is clear. Woerner, etc. v. City of Indianapolis (1961), 242 Ind. 253, 263-264, 177 N.E.2d 34.

The crucial question in this appeal is whether the term "annexes" used in the first sentence of § 55-4418a, supra, applies to annexations pursuant to § 48-727a, supra.

Historically, a municipality in Indiana only had the power to annex territory which abutted the existing boundaries of the municipality. See IC 1971, 18-5-10-30, Ind.Ann.Stat. § 48-727 (Burns 1972 Cum.Supp.). Once territory is duly annexed pursuant to § 48-727, supra, such annexation is permanent in nature, subject only to disannexation proceedings under IC 1971, 18-5-10-47 through 18-5-10-53, Ind.Ann.Stat. §§ 48-922 through 48-928 (Burns 1972 Cum.Supp.).

On April 5, 1971, § 48-727a, supra, was enacted and made immediately effective as emergency legislation. Section 48-727a, supra, provides as follows:

"Annexation of certain noncontiguous areas by towns.--Notwithstanding any other provision in this chapter, the town board of any town may, by ordinance, annex territory which is not contiguous to the boundaries of such town where such territory is declared to be occupied by a municipally owned or regulated sanitary landfill, golf course, hospital or hospital as defined in IC 1971, 16-10 [ §§ 42-1448-42-1465, 42-1601-42-1620]; Provided, however, That should the territory so annexed cease to be used or occupied for the purpose of operating a municipally owned or regulated sanitary landfill, golf course, hospital or hospital as defined in IC 1971, 16-10, the area shall cease to be considered annexed to the town and shall revert to the jurisdiction of the unit of government having such jurisdiction prior to annexation."

Annexation under the above quoted statute is conditional. A municipality may only annex noncontiguous, that is, nonabutting territory, on the condition that it is declared to be occupied for one of the enumerated uses. Moreover, the proviso contained in § 48-727a, supra, causes such annexation to cease by operation of law should the municipal use thereof cease. In such situations the territory automatically reverts to the jurisdiction of the unit of government having jurisdiction prior to annexation. Annexation under §...