New York Cent. R. Co. v. Pub. Serv. Comm'n of Indiana
| Decision Date | 23 February 1922 |
| Docket Number | No. 23900.,23900. |
| Citation | 191 Ind. 627,134 N.E. 282 |
| Parties | NEW YORK CENT. R. CO. v. PUBLIC SERVICE COMMISSION OF INDIANA et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, La Porte County.
Action by the New York Central Railroad Company against the Public Service Commission of Indiana, in which the Chicago, Lake Shore & South Bend Railway Company obtained leave to become a party defendant. From a judgment affirming an order of the Public Service Commission requiring plaintiff and the Chicago, Lake Shore & South Bend Railway Company to construct interchange tracks, plaintiff appeals. Reversed, with instructions.
Schuyler C. Hubbell, of South Bend, and Bertrand Walker and Sidney C. Murray, both of Chicago, Ill., for appellant.
U. S. Lesh, Atty. Gen., and F. J. Lewis Meyer, of South Bend, for appellees.
[1] This action was commenced by the appellant, the New York Central Railroad Company, against the appellee the Public Service Commission of Indiana in the St. Joseph circuit court, to set aside a certain order of the Public Service Commission. The action was brought under section 6 of the Railroad Commission Act (Burns' 1914, § 5536).
The appellee Chicago, Lake Shore & South Bend Railway Company applied for and obtained leave to become a party defendant, and, on motion of last-named appellee, the Chicago, Lake Shore & South Bend Railway Company, the venue of this action was changed to the La Porte superior court.
The case was submitted and tried by the court upon the amended complaint of appellant and the answer in general denial of appellee. The amended complaint alleges, in substance, that on the 14th day of December, 1917, the Public Service Commission of Indiana entered an order requiring the New York Central Railroad Company and the Chicago, Lake Shore & South Bend Railway Company to construct and maintain interchange tracks and switches at the junction of their railroads in the city of South Bend, Ind., so that carload traffic moving intrastate may be conveniently interchanged between said carriers at said point of junction.
The amended complaint also alleges, in substance, that the equipment and the carload freight of the Chicago, Lake Shore & South Bend Railway Company are not sufficient to justify said interchange tracks; that said interchange tracks would seriously impair the operation of the New York Central Railroad; that said interchange tracks would not serve any public necessity; that the order of the Public Service Commission requires the New York Central Railroad Company and the Chicago, Lake Shore & South Bend Railway Company to construct said interchange tracks across the right of way and tracks of another railroad company, the Chicago, South Bend & Northern Indiana Railway Company, which right of way and tracks are adjacent to and lie between the right of way and tracks of the Chicago, Lake Shore & South Bend Railway Company and of the New York Central Railroad Company; that the New York Central Railroad Company has no right of way across said right of way and tracks of the Chicago, South Bend & Northern Indiana Railway Company which would permit the construction and operation of said interchange tracks in accordance with said order; that the Commission has no power to grant to the New York Central Railroad Company and to the Chicago, Lake Shore & South Bend Railway Company the right to construct interchange tracks across said right of way and tracks of the Chicago, South Bend & Northern Indiana Railway Company; that the order is void and incapable of performance, because it is indefinite, vague, and unintelligible in setting forth the measure of the duty of the New York Central Railroad Company in respect thereto; that the order is arbitrary, unreasonable, beyond the jurisdiction of the Commission, denies to the New York Central Railroad Company the equal protection of the laws, deprives it of its property without due process of law and violates specified statutory and constitutional rights of the New York Central Railroad Company, both under the statutes and Constitution of Indiana, and under the statutes and Constitution of the United States of America.
The case was tried in the La Porte superior court, and the court entered a decision and judgment affirming the order of the Public Service Commission of Indiana.
A motion for a new trial was filed and overruled. The appellant appealed from said judgment and assigned as error, “The court erred in overruling appellant's motion for new trial.” The specifications of error alleged by appellant under this motion are: (1) The decision of the court is not sustained by sufficient evidence; (2) the decision of the court is contrary to law.
Appellee claims that the action to set aside the order of the Public Service Commission was not commenced within 20 days after the final order, and therefore the trial court had no jurisdiction of the case, and this court has no jurisdiction on appeal. The record, as amended by the return to a writ of certiorari, shows that the Public Service Commission made the order complained of on December 14, 1917; that on January 2, 1918, a petition for a rehearing before said Commission was filed, and on January 17, 1918, the petition was overruled and the final order of the Commission then made; and that on January 30, 1918, the complaint was filed in the St. Joseph circuit court and summons served on February 1, 1918. The action was commenced in time. Section 5533, Burns 1914.
[2] The brief of the appellant confines its discussion solely to the legal right of the Commission to order the appellant to construct interchange tracks over and upon the the tracks and right of way of the Chicago, South Bend & Northern Indiana Railway Company without the proper statutory procedure, and to the terms of the order of the Commission, which the appellant claims are incomplete, uncertain, unenforceable and void, and the questions thus raised by appellant's brief are the only ones considered in this opinion.
The appellee contends that the appellant should have made a motion to make the order of the Public Service Commission more definite. In its brief it says the order of the Commission to join with the appellee in establishing interchange tracks at the junction with that of appellant is right under the law, and within the limits of the jurisdiction of the Public Service Commission. The details under which and pursuant to which this might be accomplished is a matter, if not sufficiently definite, that can be made so by motion to modify the order. This was the duty of the appellant to do, and to exhaust all the remedies that he had at law before making this application. Appellee cites Chicago, etc., R. Co. v. Railroad Com., etc., 175 Ind. 630, 95 N. E. 364, on this point. On page 638 of said report (95 N. E. 367) the court says:
The court in that case further says that-
The statutes provide that
It appears from the record in the instant case that the appellant did apply to the Public Service Commission to grant a rehearing and such petition for rehearing was overruled. Afterwards, within the time allowed by law, it filed an action in the St. Joseph circuit court to suspend or set aside the order. It will thus be seen that appellant did do the thing which was required under the decision cited by appellee, and relief was refused.
[3] He therefore had a right, as he did do, to go into the St. Joseph circuit court for relief. It was not necessary for the appellant to make a motion to modify the judgment entered in the La Porte superior court. Section 5536, Burns 1914, provides that-
“Any carrier, or other party, dissatisfied with any final order made by the commission may, after its ruling on a petition...
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