Public Service Com'n v. Indianapolis Rys.
| Decision Date | 17 April 1947 |
| Docket Number | 28239. |
| Parties | PUBLIC SERVICE COMMISSION et al. v. INDIANAPOLIS RYS., Inc. |
| Court | Indiana Supreme Court |
Appeal from Marion Circuit Court; Horace L. Hanna, Special judge.
James A. Emmert, Atty. Gen., Cleon H. Foust, 1st Deputy Atty. Gen Frank E. Coughlin, 1st Asst. Atty. Gen., and Urban C. Stover Sp. Asst. Atty. Gen., for appellants.
Gilliom Armstrong and Gillion and Albert M. Campbell, all of Indianapolis, for appellee.
The appellee, hereinafter referred to as the utility, is a duly authorized street railway public utility and a common carrier of passengers by motor vehicle and street cars and serves the public in the City of Indianapolis and Marion County.
On November 30, 1945, the appellant, Public Service Commission of Indiana, hereinafter referred to as the commission, on petition of the utility by authority of §§ 54-203 et seq., 54-204, Burns, 1933, started an investigation and hearings to fix the current fair cash value of the utility's property and all other facts necessary for determining and fixing a just and reasonable permanent schedule of rates and charges for the utility, which investigation has not yet resulted in a determination and will not for a period of several months. Pending this investigation the commission on January 9, 1946, after a hearing, entered an order modifying a trial rate installed by it on September 5, 1945, and fixed an emergency rate to begin January 21, 1946. The utility did not seek a review of this temporary order of January 9, 1946, but instead filed what it called a 'limited' consent thereto for a period of three months beginning January 21, 1946. On March 12, 1946, the utility submitted to the commission a proposed increased schedule of rates and charges to take effect April 21, 1946, which increased the token rate of four for twenty-five cents to three for twenty-five cents along with its supplemental petition filed in the original rate case for an emergency hearing. This supplemental petition stated 'that a public hearing thereon and an emergency increase in its rates are necessary pending the final disposition of the hearing to determine a permanent rate schedule.' The supplementary petition further avers that the main hearing will not be completed for several weeks; that the rate as now fixed is confiscatory due to increased wages, loss of customers and accelerated depreciation, and that there will be no net operating income available for a fair return on the current fair cash value of petitioners used and useful property during the time said hearing for a permanent rate is being carried on unless an emergency increase in rates is granted.
On June 27, 1946, after a hearing of the utility's petition for an emergency increase in rates, the commission entered an order denying the petition and overruled the utility's motion to set aside a certain order of the commission made April 18, 1946, which motion and order we will describe hereafter in discussion appellee's complaint.
On June 28, 1946, the utility filed this action under the provisions of our statute permitting a court review within sixty days from the entry of the Commission's order. §§ 54-429, 54-430, Burns, 1933.
In its verified complaint for review the utility alleged in substance what it had alleged in its petition of March 12, 1946, and prayed that the order of the commission of June 27, 1946, above set out, disapproving an emergency increase in rates etc., be set aside and enjoined, and that until the commission shall have fixed just and reasonable rates to be charged by the utility the defendants be enjoined from interfering with the collection by the utility of rates in accordance with the rate schedule filed with the commission on March 12, 1946; and that the defendants be enjoined temporarily from interfering in any manner with the collection by the utility of rates and charges in accordance with the aforesaid rate schedule pending final decision of this action. The utility in its complaint offered, in case a temporary injunction issue, to protect its passengers against loss which they might sustain in the event the final decision would be against the utility by furnishing each passenger who purchases tokens a redeemable coupon for each token purchased and to impound sufficient funds to redeem the same as more particularly described in the interlocutory order of the trial court hereinafter set out. The petition also alleges that on April 18, 1946, the commission, without notice to the utility, and without giving it an opportunity to be heard, arbitrarily on its own motion and not in this proceedings, postponed for a period of ninety days and thereafter until further order of the commission, the said proposed emergency rate schedule which he utility had filed on March 12, 1946, and did also in said order prohibit the utility from filing any other or different schedule of rates with the commission, except by its special permission. The petition also alleges that on April 20, 1946, the utility filed its motion with the commission to set aside said order of April 18, 1946, which was overruled. The complaint also prays that the ruling on said order be set aside and vacated and its enforcement enjoined. Clearly this order of April 18, 1946, was improper. It ammounted to a refusal on the part of the commission to hear the appellee's application. The appellee was entitled to a hearing upon the proposed emergency rate schedule, but the order refusing the same was not appealable, and the commission might have been mandated to grant such hearing. State ex rel. v. Lewis, 1918, 187 Ind. 564, 120 N.E. 129.
This case was heard on the utility's application for temporary injunction as prayed for in the complaint and at the close of the hearing the trial court entered the following interlocutory order for a temporary injunction:
'I * * * hereby order that the defendants be, and they hereby are, restrained and enjoined, until the final hearing of this cause and the further order of the court, from enforcing the order of June 27, 1946, entered by the defendant Public Service Commission of Indiana under its Docket No. 17,782, denying plaintiff's application for an increase in its rates, and the ruling made in said order of June 27 denying plaintiff's motion to set aside the order of April 18, 1946, entered by said defendant Commission under its Docket No. 18,268, suspending the rate schedule filed by plaintiff on March 12, 1946, with the defendant Commission, and the said order of April 18, 1946, and from interfering with the collection by plaintiff, while this temporary injunction is in effect, of the rates provided for in said rate schedule filed by it on March 12, 1946, with the defendant Commission.
'I hereby further order that so long as this temporary injunction is in effect the plaintiff shall issue to its customers with each purchase of three tokens a coupon in the following language:
'I hereby further order that plaintiff shall from day to day during the pendency of this temporary injunction make and keep inviolate separate deposits of money in the Union Trust Company of Indianapolis in amounts sufficient to make all refunds if the final judgment herein so orders and is affirmed in event of appeals to the higher courts.
'I hereby further order that plaintiff shall provide a written undertaking with surety to the court's approval providing that plaintiff will pay to the defendants all damages and costs which may accrue to them by reason of this temporary injunction, and that plaintiff will make the aforesaid refunds if the final judgment therein so orders and is affirmed in event of appeals therefrom to the higher courts, which required undertaking is now filed by the plaintiff and the same and the surety thereon are now by me approved.
'I hereby further order that while this temporary injunction is in effect, plaintiff shall not be required to accept as payment for transportation tokens purchased at the rate of twenty-five cents for four tokens, but that it shall redeem the same as the same are presented for redemption by the holders thereof to the Company's cashier at Room 914 in the Traction Terminal Building in the City of Indianapolis, Indiana, or to the following named banks in the City of Indianapolis, Indiana, to wit: * * *.'
It is from this order appellant prosecutes this appeal.
Appellant contends that the order which the appellee sought to enjoin under and by virtue of § 54-429 Burns 1933, is the order of the commission made on January 9, 1946, wherein the commission modified the trial rate for said utility installed on September 5, 1945, and fixed an emergency rate to begin January 21, 1946. If this is the order sought to be reviewed, then the action to review was filed too late, as the same had to be...
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