Payne v. Buchanan, No. 2040
| Docket Nº | I |
| Citation | 148 N.E.2d 537, 238 Ind. 231 |
| Case Date | March 17, 1958 |
| Court | Supreme Court of Indiana |
Page 537
Schroeder, Financial Secretary, Earl Gray, Treasurer,
Charles Fridy, Shop Chairman of Servel, Inc., Shop and
Charles Schmidt, Shop Chairman of Faultless Caster Corp.,
Shop, as Officers, Members and Representatives of an
Respresenting Unity Lodge No. 2040, International
Association of Machinists, AFL-CIO, and the Members of Unity
Lodge No. 2040, International Association of Machinists,
AFL-CIO, an Unincorporated Voluntary Association and Labor
Union, and Vanderburgh County Farm Bureau, Inc., a
non-profit Corporation, Appellants,
v.
Warren BUCHANAN, Garland G. Skelton and Ira Haymaker, as
Members, and Constituting the Public Service Commission of
Indiana, and the Public Service Commission of Indiana, and
the Southern Indiana Gas and Electric Company, Appellees.
[238 Ind. 234]
Page 538
Sydney L. Berger, Evansville, for appellants.Edwin K. Steers, Atty. Gen. of Indiana, and Frank E. Spencer, Deputy Atty. Gen., for appellees Public Service Commission of Indiana and Cosntituent Members thereof.
Edmund F. Ortmeyer, Evansville, Joseph J. Daniels, G. R. Redding, John L. Wooling and John B. King, Indianapolis (Ortmeyer, Bamberger, Ortmeyer & Foreman, Evansville, and Baker & Daniels, Indianapolis), for appellee, Southern Ind. Gas & Electric Co.
ACHOR, Judge.
This action was brought in the Vanderburgh Circuit Court by appellants (plaintiffs), members[238 Ind. 235] and officers of Unity Lodge Numbered 2040, International Association of Machinists, AFL-CIO, an unincorporated voluntary association and labor union, and Vanderburgh County Farm Bureau, Inc., a non-profit corporation, against the Public Service Commission of Indiana to vacate and set aside an order granting a rate increase to the Southern Indiana Gas & Electric Company. The rate order sought to be vacated was entered on December 14, 1956. On the 59th day thereafter the complaint in this action was filed in the Circuit Court of Vanderburgh County. This is an appeal from a judgment of the trial court dismissing the action for lack of jurisdiction.
The motion to dismiss raised three points. The first deals with the time within which the action to review rate orders may be commenced; that is, whether such action was properly filed within 60 days under Acts of 1929, ch. 169, § 2, p. 530 (being § 54-430, Burns' 1951 Repl.), or whether it must be filed within 30 days under Acts of 1933, ch. 190, § 4, p. 928 (being § 54-203, Burns' 1951 Repl.).
Page 539
The second point raised is concerned with the jurisdiction of the Vanderburgh Circuit Court to entertain this action for review.
The third point involves a question of the right to maintain such action in equity, regardless of the procedural requirements and limitations as provided in either the Acts of 1929 or 1933.
We take up the points in the order stated, beginning with the first. In 1929 the Legislature enacted a general statute which provided that an action to vacate or enjoin the action of the Public Service Commission might be taken by 'any person, firm, association, corporation, city, town or public utility,' which statute [238 Ind. 236] provided that the action be commenced within 60 days after the order is made. The pertinent parts of the statute read as follows:
'Any person, firm, association, corporation, city, town or public utility adversely affected by any decision, ruling, order, determination, requirement or direction of the public service commission may commence an action in the circuit or superior court of any county in which that portion of the utility which is the subject-matter of the procedure before the public service commission operates or seeks to operate, against the commission to vacate or set aside or enjoin the enforcement of any such decision, ruling, order, determination, requirement or direction, on the ground that the same is insufficient, unreasonable, unlawful, or procured by fraud or other unlawful methods.' (Our italics.) Acts 1929, ch. 169, § 1, p. 530. § 54-429, Burns' 1951 Repl.
'Every such action shall be commenced within sixty days after the entry or rendition by the public service commission of such decision, ruling, order, determination, requirement or direction complained of: * * *' Acts 1929, ch. 169, § 2, p. 530. § 54-430, Burns' 1951 Repl.
'Appeal from such judgment may be taken by any party thereto to the Supreme Court in the same manner as provided by law for appeals in civil actions. * * *' Acts 1929, ch. 169, § 10, p. 530. § 54-438, Burns' 1951 Repl.
In 1933 the Legislature enacted a statute which dealt specifically with actions by 'any single municipality or any ten consumers or any utility' for the review of rate orders (only) and provided a 30-day period within which an action could be brought. It further provided that the action could be brought in the circuit court of the county in which the utility was located or in the general term of the superior court of Marion County. This statute also contained several new provisions[238 Ind. 237] not contained in the former act. The parts with which we are concerned here read as follows:
'Any single municipality or any ten consumers or any utility affected by a rate order may within thirty days from the rendition thereof by the commission take an appeal de novo to the circuit court of the county in which the utility is located or the general term of the superior court of Marion County. Such appeal shall be filed with the clerk of the circuit court or with the clerk of the superior court of Marion County dependent upon the court to which such appeal is taken and when filed shall have precedence upon the calendar of said circuit court to be tried without a jury. Such appeal when taken to the general term shall have precedence upon the calendar of said general term of the superior court of Marion County and shall be tried immediately by the judge of said superior court sitting in bano [banc] without the intervention of a jury. From a judgment of the circuit court or from the general term of the superior court of Marion County an appeal in such cases shall lie to the Supreme Court which shall be perfected within thirty days and shall have precedence in said court and should be considered by said court immediately in order that the business of the utility and the status of the consumer may be stabilized and expedited. The circuit court or the general term
Page 540
shall in every case enter an opinion in writing.'Pending the appeals as in this section provided the utility affected by an order or judgment of the commission and/or general term shall have the right to collect the rate as fixed by said order or judgment or at the old rate, whichever is higher in amount, and shall refund the same to the consumer if such difference be not sustained finally or if such rate as fixed by the commission is sustained in the circuit court or general term or the Supreme Court and is found finally to be confiscatory, the said difference shall be the absolute property of the utility.' Acts 1933, ch. 190, § 4, p. 928; 1947, ch. 307, § 1, p. 1251. § 54-203, 1951 Repl.
'All acts and parts of acts conflicting with the provisions of this act are hereby repealed in so far [238 Ind. 238] as they are inconsistent herewith; * * *' Acts 1933, ch. 190, § 22, p. 928. § 54-719, Burns' 1951 Repl.
Appellees cite the fact that the latter statute expressly repealed 'all acts and parts of acts conflicting with the provisions of this act' and assert that this provision supports their position that the latter statute repealed the former as to all rate cases. The provision, however, is merely a legislative reaffirmation of the fact that the general rule regarding repeal by implication should apply in construing this statute. The general rule has been stated as follows:
'* * * (1) Repeals by implication are not favored; and (2) Where there are two acts on the same subject, effect should be given to both if possible; and (3) But, if the two are repugnant in any of their provisions, the later act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first; and even when two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act. This is the rule adopted in the case of Kramer v. Beebe, 1917, 186 Ind. 349, 355, 115 N.E. 83, * * *' De Haven v. Municipal City of South Bend, 1937, 212 Ind. 194, 198, 7 N.E.2d 184, 186.
However, it is contended by appellees that the 1933 Act does cover the whole subject of the 1929 Act as related to rate cases, and that since the later act embraces many new provisions on the subject it must be construed to repeal the fromer act as to all rate cases, even under the general rule of repeal by implication.
Furthermore, in support of this position appellees rely upon the case of Griffin Telephone Corp. v. Public Service Comm., Ind.1956, 138 N.E.2d [238 Ind. 239] 150, 151-152, 153, in which case this court stated, with reference to the two acts:
'As the two Acts are obviously in conflict in their application to the case before us, we are called upon to determien whether appellant could properly proceed in the court below pursuant to the 1933 Act, as it has attempted to do. (Our italics.)
* * *
* * *
'* * * Such act being valid and applicable to the procedure for obtaining a review of rulings of the Public Service Commission in rate cases, it follows that appellant's complaint seeking a review under the 1933 Act was sufficient as against appellee's motion to dismiss, * * *'
An examination of the Griffin case, supra, however, reveals an entirely different set of circumstances which this court should consider in determining whether the 1929 and...
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Johnson v. St. Vincent Hospital, Inc., Nos. 1078
...and more specific, controls. O'Donnell v. Krneta et al., (1958) 238 Ind. 582, 154 N.E.2d 45; Payne v. Buchanan, (1958) 238 Ind. 231, 148 N.E.2d 537, 150 N.E.2d 250. We are, therefore, confronted with the constitutional issue The prior statutes as construed in Chaffin v. Nicosia, supra, gave......
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Indiana State Personnel Board v. Parkman, No. 20675
...v. State (1938), 213 Ind. 157, 12 N.E.2d 134, Page 802 114 A.L.R. 1117; Rayne, President et al. v. Buchanan et al. (1958), 238 Ind. 231, 148 N.E.2d 537, 150 N.E.2d 250; State ex rel. Black v. Board of School Com. (1933), 205 Ind. 582, 187 N.E. 392; 26 I.L.E. § 83, p. Whenever possible, sinc......
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State ex rel. Todd v. Hatcher, No. 3--373A30
...to a repeal of the former even though the latter statute contains no repealing clause. Payne, President et al. v. Buchanan et al. (1958), 238 Ind. 231, 238, 148 N.E.2d 537; Kramer v. Beebe (1917), 186 Ind. 349, 355, 115 N.E. 83; State v. Doversberger (1972), Ind.Ct.App., 288 N.E.2d 585, 33 ......
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Butler v. Forker, No. 20205
...St. Louis & Chicago Railway Co. v. Smock et al. (1892), 133 Ind. 411, 413, 33 N.E. 108; Payne, President et al. v. Buchanan et al. (1958), 238 Ind. 231, 247, 148 N.E.2d 537, Page 575 150 N.E.2d 250. In effect, thsi statute provides that ambiguities present in pleadings are not necessarily t......
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Johnson v. St. Vincent Hospital, Inc., Nos. 1078
...and more specific, controls. O'Donnell v. Krneta et al., (1958) 238 Ind. 582, 154 N.E.2d 45; Payne v. Buchanan, (1958) 238 Ind. 231, 148 N.E.2d 537, 150 N.E.2d 250. We are, therefore, confronted with the constitutional issue The prior statutes as construed in Chaffin v. Nicosia, supra, gave......
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Indiana State Personnel Board v. Parkman, No. 20675
...v. State (1938), 213 Ind. 157, 12 N.E.2d 134, Page 802 114 A.L.R. 1117; Rayne, President et al. v. Buchanan et al. (1958), 238 Ind. 231, 148 N.E.2d 537, 150 N.E.2d 250; State ex rel. Black v. Board of School Com. (1933), 205 Ind. 582, 187 N.E. 392; 26 I.L.E. § 83, p. Whenever possible, sinc......
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State ex rel. Todd v. Hatcher, No. 3--373A30
...to a repeal of the former even though the latter statute contains no repealing clause. Payne, President et al. v. Buchanan et al. (1958), 238 Ind. 231, 238, 148 N.E.2d 537; Kramer v. Beebe (1917), 186 Ind. 349, 355, 115 N.E. 83; State v. Doversberger (1972), Ind.Ct.App., 288 N.E.2d 585, 33 ......
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Butler v. Forker, No. 20205
...St. Louis & Chicago Railway Co. v. Smock et al. (1892), 133 Ind. 411, 413, 33 N.E. 108; Payne, President et al. v. Buchanan et al. (1958), 238 Ind. 231, 247, 148 N.E.2d 537, Page 575 150 N.E.2d 250. In effect, thsi statute provides that ambiguities present in pleadings are not necessarily t......