State ex rel. Indianapolis Rys. v. Superior Court of Marion County

• Decision Date: 06 October 1947
• Docket Number: 28337.
• Citation: 74 N.E.2d 912,225 Ind. 301
• Parties: STATE ex rel. INDIANAPOLIS RYS., Inc., v. SUPERIOR COURT OF MARION COUNTY et al.
• Court: Indiana Supreme Court

74 N.E.2d 912

225 Ind. 301

STATE ex rel. INDIANAPOLIS RYS., Inc., v. SUPERIOR COURT OF MARION COUNTY et al.

No. 28337.

Supreme Court of Indiana

October 6, 1947

Gilliom, Armstrong & Gilliom, of Indianapolis for relator.

Cleon H. Foust, Atty. Gen., and Frank E. Coughlin, 1st Deputy Atty Gen., and Robert Hollowell, Jr., of Indianapolis, for respondents.

STARR Judge.

This is an original action seeking a writ of prohibition from this court to restrain the respondent, Superior Court of Marion County and its judges, and to confine the said court to its lawful jurisdiction.

The substantial facts in this case are as follows: On July 1 1947, the Public Service Commission of Indiana established a new schedule of rates to be charged by the relator, which is a public utility engaged in furnishing local transportation service in Indianapolis and Marion County. The order of the Public Service Commission provided that these rates were to become effective July 14, 1947. This schedule of rates was to be a permanent rate schedule and was fixed and determined by the Public Service Commission after a series of hearings by said Commission.

On July 10, 1947, as authorized by § 54-429, Burns' 1933, Acts 1929, Ch. 169, § 1, the relator brought an action in the Marion Circuit Court to vacate and set aside and enjoin the enforcement of this rate. The setting aside of this order was sought upon the ground, among others, that the new rate schedule therein fixed, was confiscatory of the relator's property in violation of the 14th Amendment to the Constitution of the United States and Art. 1,§ 21, of the Constitution of Indiana. It further appears, that after this action to rescind the order of the Public Service Commission had been commenced, and after the Marion Circuit Court had acquired jurisdiction of the same, to-wit: on July 12, 1947, there was filed in the respondent Superior Court of Marion County by the Public Service Commission of Indiana, and others, as plaintiffs, a complaint against this relator as defendant to enjoin this relator from collecting any rates or charges different from those fixed in said rate order of July 1, 1947, which is the rate order and rate schedule involved in the above described action in the Marion Circuit Court; that after the issuance of summons in said action the respondent, John L. Niblack, Judge of the Marion Superior Court, issued a restraining order in said cause restraining the relator from collecting any rates or charges different from those fixed in the rate order of July 1, 1947, and fixing the 16th day of July, 1947, as the time for hearing of the application for a temporary injunction thereon before respondent, Hezzie B. Pike, Judge of the Marion Superior Court.

During the interim between the issuance of said restraining order, and the time fixed for the hearing on the temporary injunction, this action was started seeking to prohibit the respondents from entertaining jurisdiction of said action in which the restraining order was issued, and from having any further proceedings therein. Upon the filing of this action a temporary writ of prohibition was issued by this court prohibiting respondents from enforcing said restraining order and from assuming or exercising jurisdiction over, or having any futher proceedings in said action.

Among other things, § 54-430, Burns' 1933, being Acts of 1929 Ch. 169, § 2, provides that in all actions such was brought by the relator herein against the Public Service Commission, 'That whatever court, having jurisdiction, first acquires jurisdiction shall retain the same to the exclusion of all others courts of concurrent...