State ex rel. Northern Ohio Tel. Co. v. Winter

• Decision Date: 08 July 1970
• Docket Number: No. 69-614,69-614
• Citation: 260 N.E.2d 827,23 Ohio St.2d 6,52 O.O.2d 29
• Parties: , 52 O.O.2d 29 The STATE, ex rel. NORTHERN OHIO TELEPHONE CO., v. WINTER et al.
• Court: Ohio Supreme Court

Page 6

23 Ohio St.2d 6

260 N.E.2d 827, 52 O.O.2d 29

The STATE, ex rel. NORTHERN OHIO TELEPHONE CO., v. WINTER et al.

No. 69-614.

Supreme Court of Ohio.

July 8, 1970.

Syllabus by the Court

1. The General Assembly, by the enactment of statutory provisions requiring a public utility to file and adhere to rate schedules, forbidding discrimination among its customers, prohibiting free service, and providing a detailed procedure for service and rate complaints, has lodged exclusive jurisdiction in such matters in the Public Utilities Commission, subject to review by the Supreme Court.

2. An injunction issued by a Court of Common Pleas, which enjoins a public utility from following tariffs filed with and approved by the Public Utilities Commission, amounts to a review, suspension and delay of orders of the commission, and is a usurpation of authority.

This case is before the court pursuant to relator's petition for a writ of prohibition against the judges and clerk of the Court of Common Pleas of Medina County. The controversy arose when relator, an Ohio public utility corporation providing telephone service to customers, pursuant to tariffs filed with the Public Utilities Commission and made effective by a formal order of the commission, sought to discontinue telephone service to a subscriber, Republic Powdered Metals, Inc.

The tariff provided:

'Where amounts due for exchange service are unpaid within twenty (20) days after the date of the monthly statement for exchange service, the telephone company may discontinue telephone service and remove its equipment from the subscriber's premises.

'The telephone company may discontinue telephone service where amounts due for toll service are not paid upon presentation of the bill therefor as provided herein.'

On May 6, 1969, relator discontinued service pursuant to the above provision, and on May 7, 1969, Republic Powdered Metals, admitting nonpayment, ^* commenced an action in the Court of Common Pleas, seeking both equitable relief to prevent discontinuance of service and compensatory and punitive damages for inadequate service and unreasonable rates.

The Court of Common Pleas granted a temporary restraining order and service was restored. On June 4, 1969, relator filed a motion in the Court of Common Pleas to quash service of summons and to dissolve the temporary restraining order on the grounds that the Court of Common Pleas lacked jurisdiction over the subject matter and that the commission has exclusive jurisdiction over the controversy. After a hearing, the motion was overruled.

Relator then filed a petition for a writ of prohibition in this court essentially seeking to restrain the Court of Common Pleas from exercising claimed jurisdiction.

Power, Griffith, Jones & Bell, Gerald A. Donahue and James F. Bell, Columbus, for relator.

J. Richard McMannis, Pros. Atty., for respondents.

DUNCAN, Judge.

The question presented is whether the instant controversy is a proper case for the issuance of a writ of prohibition. The conditions which warrant the granting of a writ of prohibition are: (1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) it must appear that the refusal of the writ would result in injury for which there is no adequate remedy; (3) the exercise of such power must amount to an unauthorized usurpation of judicial power. State, ex rel. Caley, v. Tax Comm., 129 Ohio St. 83, at 87, 193 N.E. 751; State, ex rel. Nolan, v. Clen Dening, 93 Ohio St. 264, at 271, 112 N.E. 1029. See, also, State, ex rel. Garrison, v. Brough, 94 Ohio St. 115, 113 N.E. 683; State, ex rel. Lambdin, v. Brenton, 21 Ohio St.2d 21, 254 N.E.2d 681.

There is no doubt that the issuance of a temporary restraining order represents an assumption of jurisdiction by the Court of Common Pleas and involves the exercise of judicial power. This conclusion is bolstered by the fact that the Court of Common Pleas, in overruling relator's motion to quash service of summons or dissolve the temporary restraining order, in effect held that it had jurisdiction to act. Thus, the first condition necessary for the issuance of the writ is present.

Turning to the next condition, we find that if the temporary restraining order is left in effect and the court proceeds with the damage action, relator will be injured by being deprived of working capital, by being required to furnish free telephone service, and will incur the expense of legal fees for litigation. Moreover, no immediate appeal from that order would be an adequate remedy because neither the overruling of a motion to quash (Lantsberry v. Tilley Lamp Co., 14 Ohio St.2d 41, 236 N.E.2d 530; State, ex rel. Gregory, v. Masheter, 3 Ohio St.2d 43, 208 N.E.2d 926); nor the overruling of a motion to dissolve a temporary restraining order is a final appealable order. Jones v. First Natl. Bank, 123 Ohio St. 642, 176 N.F. 567.

Relator is in the precarious position of having to either violate the temporary restraining order or to violate the Revised Code sections requiring adherence to filed rate schedules, prohibiting free service and forbidding discrimination among its customers. R.C. §§ 4905.32, 4905.33 and...