State ex rel. Evansville City Coach Lines v. Rawlings, s. 28779

• Citation: 229 Ind. 552,99 N.E.2d 597
• Decision Date: 25 June 1951
• Docket Number: 28780,Nos. 28779,s. 28779
• Parties: STATE ex rel. EVANSVILLE CITY COACH LINES, Inc., v. RAWLINGS et al., (two cases).
• Court: Supreme Court of Indiana

Page 597

99 N.E.2d 597

229 Ind. 552

STATE ex rel. EVANSVILLE CITY COACH LINES, Inc., v. RAWLINGS et al., (two cases).

Nos. 28779, 28780.

Supreme Court of Indiana.

June 25, 1951.

Ortmeyer, Bamberger, Ortmeyer & Foreman, Evansville, for relator.

John D. Rawlings, Wilbur F. Dassel, Evansville, for respondents.

BOBBITT, Judge.

The cases out of which these actions grow involved identical questions and were consolidated for hearing on restraining order by the trial court. These actions were consolidated for briefing before this court, and they are so treated in this opinion.

Charles Tinsley, as President and Representative of the Evansville Industrial Union Council, Congress of Industrial Organizations, and Walter Hayden, Secretary of said organization, filed their complaint in two paragraphs in the Superior Court of Vanderburgh County on April 17, 1951, against Evansville City Coach Lines, Inc. and the Public Service Commission of Indiana and the members thereof. Among other things said complaint alleged that said Evansville City Coach Lines, Inc. filed a schedule of a proposed new tariff and bus fares applicable to its lines and routes in the city of Evansville, Indiana, to become effective January 15, 1951; that the said C.I.O. Union filed objections and a protest to the granting of the rate proposed by said tariff, which was designated No. B-4; that a hearing was held by the Public Service Commission of Indiana upon said protest and subsequently an order was issued by the commission suspending the operation of said new Tariff No. B-4 for a period of ninety days; that thereafter, on April 3, 1951, and while Tariff No. B-4 was still under suspension, said company filed with the Public Service Commission of Indiana its proposed tariff schedule No. B-5; that neither the commission nor the company notified the union or its attorney of the filing of said schedule No. B-5; and that because of said failure to notify said union or its attorney they were denied the right to file objections and protest to the commission against the rates proposed in said schedule B-5, and that because of such failure of notice the members of said union were deprived of their property without due process of law and were discriminated against by such action of the commission. It is further alleged in paragraph two of said complaint that the putting into effect the scheduled rates provided by said Tariff No. B-5 caused the membership of the union to suffer irreparable injury and loss, and that they are, by such action, deprived of their property without due process of law.

By paragraph one of their complaint said plaintiffs seek to have the action of the Public Service Commission of Indiana, in permitting the rates as set out in schedule B-5 to become effective, set aside, or, in the alternative, to compel the commission to rule upon schedule B-4 which was under suspension at the time of the filing of schedule B-5. By paragraph two of said complaint said plaintiffs seek to enjoin the Evansville City Coach Lines, Inc. from collecting fares at the rates provided in said Tariff No. B-5, and further, that said company be mandated to charge the schedule of fares as provided in Tariff No. B-3, and that the Public Service Commission of Indiana be restrained and enjoined 'from taking any steps whatsoever to interfere with the Company's Tariff No. B-3 so filed with the Public Service Commission of Indiana', and that upon a final hearing said temporary injunction be made permanent.

Also, on April 17, 1951, James Payne, as President and Representative of Local 813, United Electrical, Radio & Machine Workers of America, filed his complaint against the Evansville City Coach Lines, Inc. and the Public Service Commission of Indiana and the members thereof, making similar allegations and asking similar relief as were made and asked in the complaint filed by the C.I.O. union.

On the day of the filing of the above complaints, the Judge of the Superior Court of Vanderburgh County, after consolidating the two causes, issued a restraining order, without notice, restraining and enjoining the Evansville City Coach Lines, Inc. from enforcing the provisions of Tariff No. B-5 and from collecting from the revenue passengers any fares in excess of those provided for in Tariff No. B-3, and restraining and enjoining the Public Service Commission of Indiana and the members thereof, and their employees, from permitting the said Evansville City Coach Lines, Inc. to enforce the provisions of Tariff No. B-5, and from enforcing or collecting any fares other than those provided in its Tariff No. B-3 and supplements thereto, until further order of the court.

On April 23, 1951 relator herein filed these actions praying that a writ of mandate and prohibition issue to restrain further action by the Judge of the Vanderburgh Superior Court and the Vanderburgh Superior Court in the two proceedings there pending.

Respondent contends that he has jurisdiction in said causes number B-9429 and number B-9430 now pending in said Superior Court of Vanderburgh County (1) because plaintiffs in those actions have no adequate remedy at law whereby their rights may be determined in a court of competent jurisdiction; (2) that relator, by filing with the Commission its Tariff No. B-5 at a time when a suspended Tariff No. B-4 was pending before the commission, violated an order of the commission suspending said Tariff No. B-4; and (3) that the action of the Public Service Commission of Indiana in permitting said Tariff No. B-5 to become operative without notice to the plaintiffs in said causes number B-9429 and number B-9430 denied them and the persons whom they represented due process of law.

Relator contends that the exclusive right, jurisdiction and powers to fix fares and charges applicable to common carriers by motor vehicles is vested in the Public Service Commission, and that the Superior Court of Vanderburgh County is without jurisdiction to set aside and enjoin the enforcement of a tariff filed with the Public Service Commission in the manner provided by law, and thereby determine the question of what rates shall be charged by the Evansville City Coach Lines, Inc. First: We shall consider respondent's contentions that plaintiffs had no adequate remedy at law and that relator, by its action in filing Tariff No. B-5, violated an order of the commission. Section 47-1215, Burns' Ind. Statutes 1940 Repl., provides:

'Upon complaint in writing filed with the commission or upon the commission's own initiative without complaint, the commission may investigate whether or not any person subject to the provisions of this act has failed to comply with any provisions of this act or with any requirement established pursuant thereto.

'If the commission, after notice and hearing, finds, upon any such investigation, that such person has failed to comply with any such provision or requirement, the commission shall issue an appropriate order to compel such person to comply therewith.'

It is clear, by the terms of the statute above quoted, that if relator, as alleged in respondent's return, is violating an order of the Public Service Commission, the remedy lies in petition to the commission by those who claim that such a regulation or order is being violated. This court said in Chicago I. & L. R. Co. v. Railroad Comm., 1911, 175 Ind. 630, at page 637, 95 N.E. 364, 367, 'Injunctions will not be granted where there is an adequate legal remedy. Where the Commission has power to grant relief, application therefor must be made to it. Southern Ind. R. Co. v. Railroad Comm. (1909), 172 Ind. 113, 87 N.E. 966; Prentis v. Atlantic Coast Line Co., 1908, 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150; Texas, [& P.] R. Co. v. Abilene [Cotton Oil Co.] (1907) 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553; Interstate Commerce Comm. v. Illinois Cent. R. Co. (1909), 215 U.S. 452, 30 S.Ct. 155, 54 L.Ed. 280.' (Our italices.)

The United States Supreme Court, in an action brought by the Illinois Central Railroad Company against the Interstate Commerce Commission to set aside, annul and enjoin the enforcement of an amended order of the commission, speaking through Justice Sutherland, in United States v. Illinois Central R. Co., 1934, 291 U.S. 457, 54 S.Ct. 471, 474, 78 L.Ed. 909, at page 917 said: 'If the preliminary order be erroneous in any particular, it is susceptible of correction by the commission upon the hearing thus provided for. It will be time enough for appellees to seek the aid of a court of equity when they shall have fully availed themselves of this administrative remedy, and the commission shall have taken adverse action. Until then they are in no situation to invoke judicial action.'

If, as is contended by respondent, relator is charging illegal rates in the city of Evansville and thus violating an order or regulation of the Public Service Commission plaintiffs, in the actions pending in said Superior Court, must first exhaust their remedy of petition to the commission by pointing out that said company is not complying with the provisions of an approved tariff schedule and is thereby violating an order of the commission. Indianapolis Water Co. v. Moynahan Prop. Co., 1936, 209 Ind. 453, 456, 198 N.E. 312; Southern Ind. R. Co. v. Railroad Comm., 1909, 172 Ind. 113, 117, 119, 87 N.E. 966, supra; In re Engelhard & Sons Co., 1914, 231 U.S. 646, 651, 34 S.Ct. 258, 58 L.Ed. 416, 418.

It then becomes the duty of the Public Service Commission to make an investigation of the matters alleged in said petition and if, after notice and hearing, it should find that illegal rates are being charged by relator then the commission, under the authority vested in it by the legislature, will order the offender to desist from charging such illegal rates and if, after such order by the commission, such offender refuses to comply therewith, then the commission is the proper party to institute court proceedings to comepl...