Public Service Commission v. Indiana Tel. Corp.

• Decision Date: 02 December 1957
• Docket Number: No. 29485,29485
• Parties: , 21 P.U.R.3d 497 The PUBLIC SERVICE COMMISSION of Indiana, and Warren Buchanan, M. Elliott Belshaw, and Wendell Tennis, as members of and constituting The Public Service Commission of Indiana, and Daviess-Martin County Rural Telephone Corporation, Appellants, v. INDIANA TELEPHONE CORPORATION, Appellee.
• Court: Indiana Supreme Court

Page 248

146 N.E.2d 248

237 Ind. 352, 21 P.U.R.3d 497

The PUBLIC SERVICE COMMISSION of Indiana, and Warren

Buchanan, M. Elliott Belshaw, and Wendell Tennis, as members

of and constituting The Public Service Commission of

Indiana, and Daviess-Martin County Rural Telephone

Corporation, Appellants, v. INDIANA TELEPHONE CORPORATION, Appellee.

No. 29485.

Supreme Court of Indiana.

Dec. 2, 1957.

Edwin K. Steers, Atty. Gen., Frank E. Spencer, Deputy Atty. Gen., for appellants.

Claude M. Warren, Robert D. Armstrong, Indianapolis, Goodrich, Campbell & Warren, Gilliom, Armstrong & Gilliom, Indianapolis, of counsel, for appellee.

ARTERBURN, Judge.

The issue here is one involving a conflict over territory to be served between two telephone companies: appellant, Daviess-Martin County Rural Telephone Corporation, referred to at times as the 'Coop.' and appellee, Indiana Telephone Corporation, referred to as the 'Indiana Company'. This is an appeal from a judgment of the trial court setting aside and enjoining the enforcement of an order of the Public Service Commission in favor of the Co-op. and against the Indiana Company.

On April 5, 1951 the Public Service Commission, pursuant to statutory authority, entered an order directing all telephone companies operating in the State to file a petition with a map showing the territory they were serving and proposed a serve. It was required that the map be signed and approved by the proper official of each telephone company opearting in any territory contiguous with such company's territory.

In accordance with the order, the Co-op. filed its petition and a map outlining its territory with the commission and was granted on November 9, 1951 a 'Certificate of Territorial Authority' by the commission which covered the territory described (parts of Orange, Lawrence, Dubois and Martin counties) and which included the territory now in dispute, lying east of Shoals and adjoining the territory being then served by the appellee, the Indiana Company. The map was approved and signed by an authorized official of the appellee.

The Indiana Company operates a telephone system in the area surrounding Shoals and Loogootee, in Martin County. It did not, at the time, file a petition and map outlining its territory with a request for a certificate of territorial authority.

Matters stood thus until about May or June, 1954, when some large gypsum companies decided to locate their plants east of Shoals in the now disputed area and commenced construction. In October, 1953 or April, 1954, (the date is not certain from the evidence) the Indiana Company procured the signature of Bevis J. McCord, president of the Co-op., to a map which outlined the territory to be a map which Indiana Company. This also included the area now in dispute in which the gypsum plants were locating, and was part of the area already covered by the certificate of territorial authority granted to the Co-op. The appellee, Indiana Company, in May or June, 1954, commenced construction of lines and telephone facilities to the new gypsum plant in the disputed territory. In August, 1954 it filed its petition for a certificate of territorial authority covering the disputed territory based on the map signed by the president of the Co-op. The appellee, Indiana Company admits that it technically violated the statute at the time. The appellee since then has been serving these plants. The Co-op. did not construct lines to the plant until after a hearing before the Public Service Commission, which found (May 5, 1955) that the Co-op. was not then able, ready or willing to furnish immediate service to the plants in the disputed area. Neither company had previously taken any interest in or made any attempt to serve the territory and area in dispute until prospects arose of a lucrative service connected with the gypsum plants.

The petition of the Indiana Company for a certificate of territorial authority based upon the map included the area surrounding the gypsum plants was set down for hearing by the Public Service Commission and notice given pursuant to the statute 'for a certificate of territorial authority for a Shoals Exchange.' Thereupon, the Co-op. filed a petition to intervene and opposed this requested certificate, alleging among other things that the signature of its president to the map of the Indiana Company was obtained fraudulently. The appellant Co-op. also filed a complaint against the Indiana Company with the Commission, asking that the Indiana Company be required to remove its telephone facilities out of the disputed territory. These petitions were consolidated and heard by the Commission. After the hearing, the Indiana Company filed an amended petition, asking for a certificate of territorial authority covering a larger area which ran over to the Orange County line.

On May 5 and June 2, 1955, the Commission made a special finding and order which, in substance, authorized the Co-op. to serve the disputed territory in accordance with the certificate of territorial authority originally issued to it and denied the request of the Indiana Company, but required the company to continue to render service in the disputed area until such time as the Co-op. could construct suitable teleophone facilities for servicing the disputed area. The Commission denied a petition for rehearing by the Indiana Company and approved a report filed by the Co-op. which showed that actual construction of facilities to render the service ordered would be completed prior to July 1, 1955. On June 18, 1955 the Indiana Company filed its action in the Martin Circuit Court to vacate, set aside, and enjoin the enforcement of the order of the commission.

In september, 1955 the Co-op. filed a petition with the Commission which showed the construction of the lines to the gypsum companies completed and that the Co-op. was ready and able to render the telephone to remove its equipment within ten days. Indiana Company be directed to remove its facilities from the disputed territory. On November 4, 1955, after a hearing, the Commission ordered the Indiana Company to remove its equipment within ten days On November 23, 1955 the Commission entered an order for the purpose of slightly correcting the language in the order of November 4th. On December 9, 1955 the Indiana Company filed its supplemental complaint in the trial court setting out that since its original complaint was filed, additional proceedings had taken place before the Public Service Commission, as set forth above, including the orders of November 4th and 23rd.

The trial court, upon trial, entered on its own motion a special finding of fact, and conclusions of law and entered a judgment against the Co-op. Although we recognize by a recent rule made by this court, not yet effective, that a special finding in proceedings of this sort is helpful and an aid in considering a review on appeal, we must, under the present holdings of this court, treat a special finding not made upon request as only a general finding. The judgment and decree entered by the court (omitting the Special finding) is as follows:

'It Is Therefore Adjudged, Ordered And Decreed

'1-That public convenience and necessity require that telephone service be rendered by the plaintiff Indiana Telephone Corporation in part of the disputed area which was being served by the plaintiff on May 5, 1955.

'2-That the orders made and entered by defendant Commission in consolidated causes #25590 and #25899 dated May 5, 1955, June 2, 1955, Nov. 4, 1955 and Nov. 23, 1955 and each of them, are insufficient, unreasonable and unlawful and are hereby adjudged null and void, and are hereby vacated and set aside.

'3-That the defendants and each of them be and are hereby enjoined from enforcing or attempting to enforce, against the plaintiff, any of said orders of said Commission or any of the terms and provisions therein contained, or any fines, penalties or punishment on account thereof.

'4-That the Clerk of this Court be and is hereby ordered and directed to deliver a certified copy of this judgment and decree to the Chairman of the defendant Public Service Commission of Indiana, to take his receipt therefor and to file such receipt and note the filing thereof in the order book of this court.

'5-That said judgment and decree be and is hereby transmitted to defendant Public Service Commission of Indiana for further proceedings not inconsistent with but in compliance with this Judgment and Decree, for the determination by the defendant Public Service Commission of Indiana of the metes and bounds of that part of the disputed area in which public convenience and necessity require that telephone service be rendered by the plaintiff, and for the entry by the defendant Public Service Commission of Indiana of a sufficient, reasonable and lawful order in said consolidates causes.

'6-That when the defendant Public Service Commission of Indiana has entered its further order in said consolidated causes, pursuant to this Judgment and Decree, it shall certify such further order to this Court for the determination, by this Court, as to whether or not such further order is sufficient, reasonable and lawful, and as to whether or not the provisions of this Judgment and Decree have found completion.

'7-That the defendants and each of them, be and they are hereby enjoined from interfering or attempting to interfere with the plaintiff in rendering telephone service to the public within the territory referred to in this judgment, so long as the defendant Commission shall not have made and entered a sufficient, reasonable and lawful order in sid consolidated causes, and so long as the provisions of this Judgment and Decree have not found completion.

'8-That this Court does hereby, retain jurisdiction to enforce this Judgment and Decree until the defendant Commission has made and entered a sufficient, reasonable and lawful order in said consolidated causes, and until the...