Sizemore v. Public Service Commission of Ind., 29924

• Decision Date: 10 May 1960
• Docket Number: No. 29924,29924
• Citation: 167 N.E.2d 343,240 Ind. 513
• Parties: Edward SIZEMORE et al., Appellants, v. PUBLIC SERVICE COMMISSION OF INDIANA et al., Appellees.
• Court: Indiana Supreme Court

Page 343

167 N.E.2d 343

240 Ind. 513

Edward SIZEMORE et al., Appellants, v. PUBLIC SERVICE COMMISSION OF INDIANA et al., Appellees.

No. 29924.

Supreme Court of Indiana.

May 10, 1960.

George L. Diven, Public Counselor, Indianapolis, for appellants.

Roger D. Branigin, Lafayette, Claude M. Warren, Indianapolis, William R. Hunter, Winchester, Alan W. Boyd, Jerry P. Belknap, Indianapolis (Barnes, Hickam, Pantzer & Boyd, Indianapolis, of counsel), for appellees, General Tel. Co., of Indiana, Inc., United Tel. Co. of Indiana, Inc., and The Eastern Indiana Tel. Co.

M. Elliott Belshaw, Hammond (Bomberger, Wilson, Crites & Belshaw, Hammond, of counsel), for appellee, Illinois Bell Tel. Co.

BOBBITT, Judge.

This case came to the Appellate Court on appeal from an order of the Public Service Commission of Indiana as provided by Acts 1957, ch. 189, § 1, p. 395, being § 54-443, Burns' 1959 Cum.Supp.

After due consideration by the Appellate Court sitting in banc, four judges of that court being of the opinion that the order of the Public Service Commission from which the appeal was prosecuted should be affirmed, and the other four judges being of the opinion such order should be reversed and the cause remanded, and a majority of the court failing to agree, the case was ordered transferred to this court under the provisions of Acts 1901, ch. 247, § 15, p. 565, being § 4-209, Burns' 1946 Replacement.

As is true in an appeal from an order of the Industrial Board the 'appeal' provided by § 54-443, supra, is not an appeal in fact but is rather a judicial review of the decision of the order or the Public Service Commission by the Appellate Court, which is the court of exclusive original jurisdiction in such cases. Graver Tank & Mfg. Co., Inc. v. Maher, 1958, 238 Ind. 226, 229, 150 N.E.2d 254.

There has been no decision of the Appellate Court herein, hence the issues raised by the assignment of errors have never been decided by any court. Under such circumstances this court does not have jurisdiction thereof, and this case cannot be transferred here under the provisions of § 4-209, supra. Graver Tank & Mfg. Co., Inc. v. Maher, supra; Burroughs Adding Machine Co. v. Dehn, 1942, 219 Ind. 350, 38 N.E.2d 569.

Section 54-443, supra, provides for an 'appeal' to the Appellate Court for errors of law from any final decision, ruling or order of the Public Service Commission of Indiana, and further provides that 'the losing party or parties in the Appellate Court' may apply to the Supreme Court for a petition to transfer the cause to this court as in other cases....