Public Service Commission v. Indiana Bell Telephone Co., 28913

• Citation: 112 N.E.2d 751,232 Ind. 332
• Decision Date: 05 June 1953
• Docket Number: No. 28913,28913
• Parties: , 1 P.U.R.3d 508 PUBLIC SERVICE COMMISSION et al. v. INDIANA BELL TEL. CO.
• Court: Supreme Court of Indiana

Page 751

112 N.E.2d 751

232 Ind. 332, 1 P.U.R.3d 508

PUBLIC SERVICE COMMISSION et al. v. INDIANA BELL TEL. CO.

No. 28913.

Supreme Court of Indiana.

June 5, 1953.

J. Emmett McManamon, former Atty. Gen., Edwin K. Steers, Atty. Gen., Clyde H. Jones, J. D. Wright, Deputy Attys. Gen., for appellants.

Walter F. Jones, Jr., former Public Counselor, Indianapolis, and James P. Robinson, Public Counselor, Indianapolis, for appellants intervenors.

Walter F. Jones, Jr., Indianapolis, of counsel, for appellants.

Patrick J. Smith, Fred J. Capp and Hyle G. Burke, Indianapolis (George W. Hand, Thompson, O'Neal & Smith, Indianapolis, of counsel), for appellee.

John P. Randolph, Gen. Sol., and Austin L. Roberts, Jr., Asst. Gen. Sol., Washington, D. C., amicus curiae.

FLANAGAN, Judge.

On May 31, 1951, the Public Service Commission of Indiana, in its cause numbered 22632, entered an order fixing certain rates to be charged by appellee, a public utility. On June 15, 1951, the appellee filed its complaint in the Marion Circuit Court, under the provisions of § 54-429, Burns' 1951 Replacement, and under the general equity powers of that court, seeking to set aside that order. The above-mentioned section reads 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.'

The complaint charged that the order was insufficient, unreasonable and unlawful, and was procured by unlawful means, and sought an injunction to prevent the Public Service Commission from enforcing that order or interfering with its charging what it alleged to be reasonable rates until reasonable rates were finally legally determined.

On June 28, 1951, the Marion Circuit Court granted an injunction, and approved a schedule of reasonable rates pendente lite. That action, upon proper procedure, reached the attention of this court and was here approved. State ex rel. Public Service Comm. v. Marion Circuit Court, 1951, 230 Ind. 277, 100 N.E.2d 888, 103 N.E.2d 214.

After the granting of the temporary injunction, a hearing was held in the Marion Circuit Court, with the result that the court held that new and additional evidence had been introduced by the Indiana Bell Telephone Company, and certified that fact to the Public Service Commission of Indiana, pursuant to the provisions of § 54-436, Burns' 1951 Replacement. This section reads as follows:

'If, upon the trial of such action, evidence shall be introduced which is found by the court to be materially different from that offered upon the hearing before the commission, the court before proceeding to render judgment, unless the public service commission shall, in writing, waive the necessity, shall transmit a copy of such materially different evidence to the commission and shall stay further proceedings in said action for fifteen (15) days from the date of such transmission. Upon the receipt of such evidence the commission shall consider the same and may, in any manner, change its decision, ruling, order, determination, requirement or direction complained of in said action, and shall report its action thereon to said court within ten (10) days from the receipt of such evidence.'

The order of transmission to the Public Service Commission was dated November 19, 1951. By order dated November 21, 1951, the Public Service Commission rescined the order in controversy, being that order dated May 31, 1951, in its cause numbered 22632, and ordered a supplementary hearing to be held November 30, 1951, provided there would be dismissal of the injunction matter in the Marion Circuit Court, pursuant to the provisions of § 54-437, Burns' 1951 Replacement. This section reads as follows:

'If the commission shall so report that it has rescinded its decision, ruling, order, determination, requirement or direction complained of, the court shall thereupon dismiss the action; if the commission shall so report that it has otherwise changed its action the changed or amended decision, ruling order, determination, requirement or direction shall take the place of the original decision, ruling, order, determination, requirement or direction complained of, and judgment shall be rendered thereon as though made by the commission in the first instance. If the original action of the commission complained of be not rescinded or changed by the commission, judgment shall be rendered upon such original decision, ruling, order, determination, requirement or direction.'

However, instead of following the provisions of the statute above set forth, the Marion Circuit Court set this case for hearing upon the request for permanent injunction, held such hearing, and entered a permanent injunction approving a schedule of rates different from those approved on the temporary injunction, and enjoining the Public Service Commission from interfering until it shall 'in the manner...