State ex rel. Public Service Com'n v. Marion Circuit Court, 28819

• Decision Date: 01 October 1951
• Docket Number: No. 28819,28819
• Citation: 100 N.E.2d 888,230 Ind. 277
• Parties: . Supreme Court of Indiana
• Court: Indiana Supreme Court

Page 888

100 N.E.2d 888

230 Ind. 277

STATE ex rel. PUBLIC SERVICE COMMISSION v. MARION CIRCUIT COURT.

No. 28819.

Supreme Court of Indiana.

Oct. 1, 1951.

J. Emmett McManamon, Atty. Gen., Frank E. Coughlin, Deputy Atty. Gen., Clyde H. Jones, Chief Counsel and Walter F. Jones, Jr., Public Counselor, Indianapolis, for relator.

Lloyd D. Claycombe, T. D. Stevenson and Patrick J. Smith, Indianapolis, for respondents, Thompson, O'Neal & Smith, Indianapolis, of counsel.

T. D. Stevenson, Patrick J. Smith, Indianapolis, for Indiana Bell as amicus curiae, Thompson, O'Neal & Smith, Indianapolis, of counsel.

BOBBITT, Judge.

This action arises under the Acts of 1929, ch. 169, § 1, p. 530, being § 54-429, Burns' 1951 Repl.

On November 21, 1950, the Indiana Bell Telephone Company filed its petition with the Public Service Commission of Indiana requesting an increase in rates, tolls and charges intrastate and for certain increases in charges for its exchange services. Said petition was properly docketed by said commission and after various hearings thereon the commission, on May 31, 1951, issued and promulgated its final order therein prescribing a new schedule of rates and charges for said company. On June 15, 1951 said company filed its action in the Marion Circuit Court under the provisions of § 54-429, Burns' 1951 Repl., supra, to set aside and vacate said order, on the ground that it was insufficient, unreasonable and unlawful, and was procured by unlawful means, and as ancillary thereto, requested a temporary injunction to enjoin the Public Service Commission from interfering, or attempting to interfere, with the charging and collecting of a temporary schedule of rates as proposed in the complaint, until the final determination by the Public Service Commission of reasonable, adequate and nonconfiscatory rates to be charged by the company, and upon final hearing, that said order be vacated and set aside and that the commission be permanently enjoined from its enforcement.

After hearing on the company's petition for temporary injunction the Marion Circuit Court, on June 28, 1951, entered its order therein which, omitting caption and signatures, is as follows:

'Temporary Injunction.

'Come the parties herein by counsel and, this cause having been submitted upon plaintiff's application for a temporary injunction at the time and place fixed therefor and the court having heard the evidence and the arguments of counsel and being duly and fully advised in the premises, it is now

'Ordered that the plaintiff shall file with the Public Service Commission of Indiana the schedules of local exchange rates for plaintiff's services within the State of Indiana set out in the complaint; and it is further

'Ordered that the plaintiff may make said schedule of local exchange rates effective as of plaintiff's regular billing dates as they shall occur next after said filing; and it is further

'Ordered that plaintiff may charge and collect the rates included in said schedule from and after the filing and effective date aforesaid and until the further order of the court herein; and it is further

'Ordered that the defendants be and they are hereby enjoined and restrained from interfering or attempting to interfere with the charging and collecting by plaintiff of the rates for its services included in said schedules until the further order of the court herein; and it is further

'Ordered that the plaintiff shall enter into a written undertaking, with surety to be approved by the court, to the defendants for the payment of all damages and costs which may accrue by reason of this injunction; and it is further

'Ordered that if the order of the defendant commission herein involved shall not be vacated or set aside or the enforcement thereof enjoined upon the trial herein or upon the determination of any appeal which may be taken from the judgment entered upon said trial, the plaintiff shall make refund to its subscribers as follows:

'a. To each subscriber paying for local exchange service at the rate therefor specified in said schedule of local exchange rates, the refund shall be equal to 86.5% of the difference between the amount so paid and the amount which would have been payable for the same service at the rate therefor specified in plaintiff's local exchange tariff in effect immediately prior to the date hereof.

'b. To any person who may become entitled to a refund hereunder who shall then be a subscriber of the plaintiff, such refund shall be made by crediting the amount thereof to such subscriber upon plaintiff's next billing for service; provided, however, that upon the request of such subscriber the amount of said refund shall be paid in money; and it is further

'Ordered that plaintiff shall enter into a written undertaking, with surety to be approved by the court, for the making of all refunds which may be required under the foregoing provisions.'

The Public Service Commission of Indiana then filed its complaint in this court for writ of prohibition and mandate asking that the Marion Circuit Court and the Judge thereof be mandated to withdraw and set aside said order of temporary injunction, and that it be prohibited from any further proceedings therein.

Respondents herein filed an answer and response and a brief in support thereof. We have, however, not been favored with a brief by relator or by any one in its behalf.

While other questions are presented by respondents' brief only three need be considered in determining this action. They are:

First: Did the Marion Circuit Court have jurisdiction of the subject matter and of the parties?

Jurisdiction is the right, authority and power to hear and determine a cause of action.

Lantz v. Maffett, 1885, 102 Ind. 23, 26 N.E. 195; Freestone v. State ex rel. Advance-Rumely Co., 1934, 98 Ind.App. 523, 176 N.E. 877; 50 C.J.S., Jurisdiction, pp. 1089 to 1092; 14 Am.Jur., Courts, § 160, p. 363.

This action was commenced in the Marion Circuit Court to vacate, set aside and enjoin the enforcement of an order of the Public Service Commission ¹ on the ground that such order was insufficient, unreasonable and unlawful.

Acts of 1929, ch. 169, § 1 at p. 530, being § 54-429, Burns' 1951 Repl., supra, provides: 'Section 1. Be it enacted by the general assembly of the State of Indiana, That any person, firm, association, corporation, city, town or public utility adversely affected by any decision, ruling, order, determination, requirement or direction of the public service commission may commence an action in the circuit or superior court of any county in which that portion of the utility which is the subject matter of the procedure before the public service commission operates or seeks to operate, against the commission to vacate or set aside or enjoin the enforcement of any such decision, ruling, order, determination, requirement or direction, on the ground that the same is insufficient, unreasonable, unlawful, or procured by fraud or other unlawful methods.'

This section of the statute expressly vests jurisdiction in the Marion Circuit Court to hear and determine actions to vacate, set aside or enjoin the enforcement of any decision, ruling, order, determination, requirement or direction of the Public Service Commission on the grounds therein set out. § 54-429, Burns' 1951 Repl., supra.

The complaint alleges that the order was insufficient, unreasonable and unlawful, and was procured by unlawful means, and this is sufficient to bring the subject matter of the action within the jurisdiction of the court. Public Service Commission v. City of La Porte, 1935, 207 Ind. 462, 468, 193 N.E. 668.

The Marion Circuit Court also has original jurisdiction in all cases at law and equity, except as otherwise provided by statute, Acts of 1881, Spec.Sess., ch. 24, § 3, p. 102, § 4-303, Burns' 1946 Rupl.; and the case at bar does not come within the exceptions noted. The Acts of 1899, ch. 233, § 1, p. 537, being § 3-2101, Burns' 1946 Repl. gives express jurisdiction to circuit courts to issue injunctions.

This court in State ex rel. v. Gleason, 1918, 187 Ind. 297, at pages 298, 299, 119 N.E. 9, 10, in determining the jurisdiction of the Vigo Superior Court to issue a temporary injunction construed two sections of earlier statutes containing provisions similar to § 54-429, Burns' 1951 Repl., supra, and § 4-303, Burns' 1946 Repl., supra, said: 'By the act creating it the Vigo superior court was given general jurisdiction at law and in equity, and by section 14 (Acts 1881, p. 95) of the act it was expressly given power to grant restraining orders and injunctions. It thus appears that the court had general jurisdiction of the subject-matter of the action and had power to grant injunctions in proper cases. It is not denied that the court had obtained jurisdiction of the parties to the proceeding. It has been uniformly held that a court, which has jurisdiction of the subject-matter of an action and which has obtained jurisdiction of the parties, has power to hear and determine such action.'

We concur in the reasoning and conclusions reached by Judge Lairy in the above quotation and they apply with equal force to the issues presented in the case at bar.

The Marion Circuit Court would have the right and power to review the order of the Public Service Commission out of which this cause arises, in the absence of express statutory authority. Public Service Commission v. City of La Porte, 1935, 207 Ind. 462, 193 N.E. 668, supra; Public Service Comm. v. Indianapolis Railways, 1947, 225 Ind. 30, 39, 72 N.E.2d 434; State ex rel. Indianapolis Ry. v. Superior Court, 1947, 225 Ind. 301, 304, 74 N.E.2d 912; Lake Erie & Western R. R. Co. v. Cluggish et al., 1896, 143 Ind. 347, 42 N.E. 743; 43 Am.Jur., Public Utilities and Services, § 224, p. 720.

Second: Having determined that the Marion Circuit Court had jurisdiction of the subject matter and of the parties, we now consider whether or not is was within...