Sizemore v. Public Service Commission

• Decision Date: 02 November 1961
• Docket Number: No. 19239,19239
• Citation: 177 N.E.2d 743,133 Ind.App. 51
• Parties: , 41 P.U.R.3d 209 Edward SIZEMORE et al., on behalf of themselves and others similarly situated, Appellants, v. PUBLIC SERVICE COMMISSION of Indiana, Illinois Bell Telephone Company, General Telephone Company of Indiana, Inc., United Telephone Company of Indiana, Inc., and The Eastern Indiana Telephone Company, Appellees.
• Court: Indiana Appellate Court

Page 743

177 N.E.2d 743

133 Ind.App. 51, 41 P.U.R.3d 209

Edward SIZEMORE et al., on behalf of themselves and others

similarly situated, Appellants, v. PUBLIC SERVICE COMMISSION of Indiana, Illinois Bell

Telephone Company, General Telephone Company of Indiana,

Inc., United Telephone Company of Indiana, Inc., and The

Eastern Indiana Telephone Company, Appellees.

No. 19239.

Appellate Court of Indiana, In Banc.

Nov. 2, 1961.

George L. Diven, Warren M. Martin, Public Counselors, Indianapolis, for appellants.

Edwin K. Steers, Atty. Gen., for Public Service Commission.

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

M. Elliot Belshaw, Hammond, for appellee Illinois Bell Telephone Co., Bomberger, Wilson, Crites & Belshaw, Hammond, of counsel.

PFAFF, Chief Justice.

Appellants have brought here for judicial review a decision of the Public Service Commission dated August 1, 1958, relating to the matter of rates, tolls, charges, rules and regulations applicable to intrastate message toll telephone service in the State of Indiana pursuant to Acts of 1957, ch. 189, § 54-443, Burns' 1951 Replacement (Supp.). The proceeding before the Commission was numbered as Ex Parte No. 27660.

It appears from the record that one company, not a party to this review, hereinafter referred to as Indiana Bell, owns and operates the basic telephone network in Indiana; that there are 185 other telephone companies and Indiana Bell has toll agreements with 115 of them; that in 1957 approximately 33,500,000 toll messages were interchanged between Indiana Bell and other companies in Indiana and the dollar volume was approximately $28,000,000; that more than half of the messages originated in telephone exchanges other than Indiana Bell.

This one company, Indiana Bell, duly filed its petition for an increase in rates and a general increase was granted by an order entered on April 3, 1958, Commission Cause No. 27493, although a reduction was made for some types of calls. The order or decision in that cause was not challenged.

Thereafter, on the same date, without any petition or request for a rate increase and without notice or a hearing, the Commission, on its own motion, issued an order authorizing the increase of long distance telephone rates of all other companies to correspond with those of Indiana Bell. This order in what is designated as an Ex Parte proceeding stated that the Commission had entered into an investigation of the changes and revisions of the rates of Indiana Bell to determine what effect they might have on intrastate message toll rates generally. It made a finding that it has been the general practice of the Commission to apply a uniform schedule of message toll rates throughout the state, and that uniformity was necessary to avoid unjust discrimination and unreasonable preferences or advantages and to avoid confusion and complication in quoting and charging of rates.

On April 15, 1958, June, 1958, and June 9, 1958, patrons and rate payers of the territory served by Illinois Bell Telephone Company, patrons and rate payers of the territory served by the Moores Hill Telephone Company and Southeastern Indiana Rural Telephone Company, patrons and rate payers of the territory served by the General Telephone Company filed their respective motions to set aside the order entered in the Ex Parte proceeding, Commission Cause No. 27493, for lack of notice, hearing, and failure to comply with statutory requirements. All three motions are substantially the same except for identity of location and individuals. Omitting formal parts and signatures said motions read as follows:

'1. They are residents of the territory served by the Illinois Bell Telephone Company, a public utility operating in the State of Indiana and under the jurisdiction of the Public Service Commission of Indiana.

'2. On April 3, 1958, the Public Service Commission of Indiana approved an order in Ex Parte No. 27660, wherein said Illinois Bell Telephone Company and numerous other telephone utilities were granted an increase in rates and charges applicable to intrastate message toll service in the State of Indiana.

'3. That said order was entered without formal petition on behalf of any affected utilities and without any statutory or legal proceedings being commenced or pending before the Public Service Commission of Indiana.

'4. Said order was issued without notice to the patrons, customers of any of the affected utilities or to the general public and said patrons, customers and general public were deprived of the right of hearing.

'5. Said order was issued without hearing, determination or finding of value of property involved or rate of return thereon or of service available to the patrons and customers of the utilities affected.

'6. That the order of said Public Service Commission of Indiana approved April 3, 1958 is improper, illegal and deprives the patrons and customers of said utility of property and rights without due process of law.

'Wherefore, the undersigned persons on their own behalf and on behalf of other persons similarly situated move that said order of April 3, 1958 be set aside and declared null and void.'

Thereupon the Commission held a formal hearing and on May 5, 1958, entered an order reading as follows:

'The Commission, having heretofore on its own motion conducted a summary investigation of intrastate message toll rates within the State of Indiana, and as a result of such investigation, and in order to prevent improper or unlawful discrimination, authorized telephone companies in Indiana furnishing intrastate toll services in any way connected with the toll facilities of Indiana Bell Telephone Company to file and make effective certain uniform and conforming rates, said procedures and authorizations having been a long and well established practice of the Commission for the fixing of such uniform intrastate toll rates;

'The Commission, now upon further consideration, is satisfied that sufficient grounds exist to warrant a formal hearing of the matters so investigated.

'It Is Therefore Ordered by the Public Service Commission of Indiana that a formal hearing be held with respect to the matters so investigated after proper notice to the utilities interested and to such other interested persons as the Commission shall deem necessary.

'It Is Further Ordered that the mailing of a copy of this order to the utilities interested and to such other persons as the Commission shall deem necessary shall constitute the statement notifying such utilities and other interested persons of the matters under investigation.'

That said notice of the hearing was published in 31 of the 92 counties of Indiana. No notice was published in the additional counties wherein patrons and rate payers of the utilities affected by the rate increases resided.

On June 12, 1958, hearing was had. Illinois Bell Telephone Company appeared as an intervenor. No other telephone utilities appeared in any capacity. George L. Diven, Public Counselor of Indiana entered a special appearance for the purpose of questioning the jurisdiction of the Public Service Commission of Indiana to enter an order increasing rates and moved that the action abate. Said special appearance and motion to abate reads as follows:

'Comes now George L. Diven, Public Counselor, and enters his appearance specially herein for the purpose of presenting the Motion to Set Aside the order of this Commission entered on April 3, 1958, and to question the jurisdiction of the Commission to fix any rates under this proceedings.

'It is specifically stipulated that by this appearance the requirements of legal notice and procedure for determining of rates is not waived and that the rate payers, patrons and the public who might be affected by any order on rates entered herein are not made parties to said Ex Parte proceeding for any purpose other than to present said motion and to question the jurisdiction of the Public Service Commission of Indiana to establish any rates or charges for telephone service by said proceedings as now pending, and said rate payers, patrons and public waive no rights they have and consent to no jurisdiction.

'Comes now George L. Diven, Public Counselor, and having appeared specially herein for the purposes and under the conditions set out therein, now moves that this proceeding abate for the following reasons:

'1. No proper statutory proceeding for determination of rates has been filed or is pending herein.

'2. Notice as required by statute has not been issued.

'3. The Public Service Commission of Indiana has no jurisdiction to hear evidence or establish rates in the manner or in the proceedings now pending.

'Further oral objection appears to a specific question. The question, objection and ruling are: Now, Mr. Roby, do you know what has been the custom in Indiana over this period of time that you have been with the Commission or prior thereto in regard to intrastate toll rates?

'Mr. Diven: To which we object, first, for the reason that there is no issue properly presented or pending before this Commission relative to the establishment of toll rates or any other rates, that there are no petitions pending in this matter seeking the establishment of any rates, there is no legal proceeding which is now undergoing hearing for the establishment of rates; for the further reason that what might have been the custom of a Commission, this Commission or any other Commission or body would be absolutely immaterial and irrelevant to the issues of this case unless it can be shown that there was complete compliance with the statutes and laws of Indiana. The mere occurrence or precedent of something which is basically illegal...