State ex rel. Public Service Co. of Ind. v. Pike Circuit Court of Pike County, 30367

• Decision Date: 21 August 1963
• Docket Number: No. 30367,30367
• Parties: STATE of Indiana on the Relation of PUBLIC SERVICE COMPANY OF INDIANA, Inc., Relator, v. The PIKE CIRCUIT COURT OF PIKE COUNTY, Indiana, and the Honorable Lester Nixon, Judge of Said Court, Respondents.
• Court: Indiana Supreme Court

Page 149

192 N.E.2d 149

244 Ind. 481

STATE of Indiana on the Relation of PUBLIC SERVICE COMPANY

OF INDIANA, Inc., Relator, v. The PIKE CIRCUIT COURT OF PIKE COUNTY, Indiana, and the

Honorable Lester Nixon, Judge of Said Court, Respondents.

No. 30367.

Supreme Court of Indiana.

Aug. 21, 1963.

Paul G. Jasper, Charles W. Campbell, Plainfield, John E. Hurt, Martinsvville, Carl M. Gray, Petersburg, for relator.

Lester Nixon, Petersburg, pro se., Ralph P. Zoercher, Tell City, Parr, Parr, Parr & Richey, Lebanon, Cadick, Burns, Duck & Neighbours, Indianapolis, John K. Chappell, Petersburg, for respondents.

MYERS, Chief Justice.

This is an original action persented to us by Public Service Company of Indiana Inc., as relator, against the Pike Circuit Court and the Hon. Lester Nixon as the Judge thereof. A temporary writ prohibiting the respondents from issuing any orders, judgments or decrees of any character, or proceeding further, in a certain cause pending in the Pike Circuit Court against this relator, was asked. We ordered respondents to show cause why a permanent writ should not be issued. This has been done in a response filed herein.

Relator is a corporation organized and existing under the laws of the State of Indiana for the main purpose of generating, transmitting and selling electric energy as a public utility. As such, it is the owner of franchises, permits and licenses authorizing it to sell electric energy, both for resale and at retail in the State of Indiana. It is subject to regulation and control by established regulatory boards and commissions, in particular the Public Service Commission of Indiana (hereinafter called 'Commission'). Its business is carried on in sixty-nine counties in the State of Indiana, including Pike County.

By means of five electric generating stations owned and operated by relator located in different parts of the state, it is able to sell electric energy to more than 382,000 customers, including residents of municipalities and rural areas, Indiana municipalities, unincorporated communities and rural electric membership corporations organized under the Indiana Rural Electric Membership Corporation Act of 1935 as amended (hereinafter referred to as 'REMCs'). As of December 31, 1961, its investment in its business as an electric public utility system was in excess of $525,843.000.

There are four other electric transmission systems owned and operated in the State of Indiana by Indiana corporations, viz.: Northern Indiana Public Service Company, Indiana & Michigan Electric Company, Indianapolis Power & Light Company (IPALCO), and Southern Indiana Gas and Electric Company. Relator's system is interconnected with these systems, as well as with certain other systems doing business in Ohio and Kentucky.

In 1935, a corporation named Indiana Statewide Rural Electric Membership Corporation (hereinafter called 'Statewide') filed with the Commission for approval proposed articles of incorporation and a request for the issuance to it of a certificate of public convenience and necessity for the operation of this organization pursuant to the provisions of the Indiana REMC Act of 1935. It was stated that the purpose of the corporation was to make electric energy available to the inhabitants of rural areas of Indiana at the lowest cost without pecuniary profit to itself. If is alleged that it did not request or accept any franchise, right or privilege or undertake to generate and transmit electric energy for local district REMCs. The Commission approved Statewide's articles of incorporation on July 12, 1935.

In 1949, a corporation entitled 'Hoosier Cooperative Energy, Inc.' (hereinafter called 'Hoosier Co-op.'), was organized under the Indiana General Not for Profit Corporation Act. In 1957, this corporation took options on two tracts of real estate on White River in Pike County, Indiana, for the announced purpose of constructing a steam generating plant. Late in the year, it announced the purchase of that land. This property was immediately adjacent downstream to real estate which had been purchased by IPALCO in 1951 as the site for a new power plant to be constructed by it. Hoosier Co-of. meanwhile applied to the Rural Electrification Administration for a loan with which to finance the construction of its generating station together with related facilities.

In March, 1962, there was information to the effect that Hoosier Co-of. was going to transfer its interest in the real estate purchased to Statewide, which was going to proceed with the construction of a steam generator plant thereon. Statewide claimed to have as 'members', fifteen REMCs located in Southern Indiana which relator claims are 'customers' of it.

In December, 1961, Hoosier Co-op. sought by petition filed with the Public Service Commission to obtain a certificate of public convenience and necessity to allow Hoosier Co-op. to construct and operate an electric generating station on the land purchased by Hoosier Co-op., and to obtain permission to issue promissory notes in an amount not in excess of $60,225,000 payable to the United States of America for a loan to be issued by United States Department of Agriculture to Hoosier Co-op., together with a mortgage on the property a security therefor.

The five electric public utility companies, including this relator, filed requests for leave to intervene in this cause for the purpose of opposing the granting and issuance by the Commission of any certificate of public convenience and necessity to Hoosier Co-op. for this construction. These petitions were accepted for filing by the Commission, which entered an order acknowledging their filing and directing Hoosier Co-op. to file responsive pleadings. This was not done. On April 24, 1962, Hoosier Co-op. filed a motion to dismiss with the Commission, which was sustained without prejudice over the objection of the relator. After the dismissal, it is alleged that Statewide prevailed upon Hoosier Co-op. to assign to Statewide the loan commitment, and that Hoosier Co-of.'s organization was assimilated into Statewide's organization as a 'division' of Statewide.

On May 18, 1962, IPALCO filed an injunction suit against Statewide and Hoosier Co-op. in the Pike Circuit Court asking that the defendants be enjoined from interfering with the use of the plant site of IPALCO and to declare certain rights in the waters of White River.

On June 1, 1962, relator filed an injunction suit against Statewide in the Marion Circuit Court, praying that Statewide be permanently enjoined from engaging in the business of generating, transmitting and selling electric energy as a public utility within the State of Indiana; from constructing and operating any generating plant and related facilities; from issuing any notes or other evidence of indebtedness as a public utility until such time as Statewide obtained a certificate of public convenience and necessity from the State to act as a public utility.

On June 15, 1962, Statewide filed its special appearance in the Marion Circuit Court for the purpose of filing a plea in abatement. It so filed such plea together with a motion for change of venue which was granted. On November 12, 1962, the cause was venued to the Hancock Circuit Court, Hancock County, Indiana.

On June 20, 1962, Statewide filed its petition in the Pike Circuit Court to have relation and the other four public utilities made parties to the IPALCO suit. The court granted such motion without hearing and ordered summons issued to relator and the others. Relator filed its motion to quash the summons and set aside the order making relator a party to the suit. On June 29, 1962, Statewide filed in the Pike Circuit Court what is designated as a cross-complaint and petition for realignment of parties. The motion to quash and set aside the order was overruled, and the Pike Circuit Court ordered defendants to answer a plea in abatement filed by relator. On February 4, 1963, the court overruled the answer in abatement and ordered relator...