Town of Merrillville v. Lincoln Gardens Utilities Co., Inc., No. 2--573A121

• Docket Nº: No. 2--573A121
• Citation: 351 N.E.2d 914, 170 Ind.App. 245
• Case Date: August 16, 1976
• Court: Court of Appeals of Indiana

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351 N.E.2d 914 170 Ind.App. 245 TOWN OF MERRILLVILLE and Merrillville Conservancy District,
Appellants (Interventors below),
v.
LINCOLN GARDENS UTILITIES COMPANY, nc., a/ppellee (Petitioner below),
Gary-Hobart Water Corp. et al., Appellee (Intervenors below). No. 2--573A121. Court of Appeals of Indiana, Second District. Aug. 16, 1976.
Rehearing Denied Oct. 22, 1976.

[170 Ind.App. 246] Fred M. Cuppy, Gerald K. Hrebec, Gary, for appellants.

Porter R. Draper, Tulsa, Okl., Alan E. O'Connor, Gary, for appellees.

BUCHANAN, Presiding Judge.

CASE SUMMARY

Intervenors-Appellants, Merrillville Conservancy District and Town of Merrillville, seek review of a Public Service Commission order granting a certificate of territorial authority for sewage disposal service to Petitioner-Appellee, Linoln Gardens Utilities Company, claiming the order was contrary to law because the Commission lacked jurisdiction to grant the certificate.

We reverse and remand.

FACTS

The facts and evidence most favorable to petitioner and the Commission's decision are as follows:

Lincoln Gardens Utilities Company ('Lincoln') petitioned the Public Service Commission on July 12, 1971, for a certificate of territorial authority to render sewage

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disposal service in a specifically described rural area in Ross Township, Lake County, Indiana. The petition was pursuant to IC 1971, 8--1--2--89 (Burns Code Ed.), empowering the Commission to regulate the creation and expansion of rural sewage disposal services by conferring exclusive territorial rights to qualifying utilities.

The Commission held a hearing on October 22, 1971, in which Lincoln Presented evidence concerning its ability to serve the proposed area. The President of Lincoln testified that to the best of his knowledge the area sought to be served was not within the territorial limits of any existing city or town.

On December 2, 1971, the Merrillville Conservancy District (MCD) and the Methodist Hospital of Gary jointly moved [170 Ind.App. 247] the Commission for permission to intervene in the proceedings. Among other objections, MCD and the Hospital opposed Lincoln's petition because the geography sought to be served was not rural as required by statute. (IC 1971, 8--1--2--89(a)(3) (Burns Code Ed.)). They presented the Commission with a copy of an application for incorporation of the Town of Merrillville which had been filed with the Lake County Board of Commissioners on July 27, 1971, by residents of the same area which Lincoln sought to serve.

On December 30, 1971, the Lake County Board of Commissioners passed an ordinance creating the Town of Merrillville ('Town') in a geographic area coextensive with the territory Lincoln petitioned to serve.

After a series of events which are not in issue here, ¹ the Town was granted permission to intervene on December 15, 1972. The Town and MCD thereafter moved to dismiss Lincoln's petition on the ground the territory sought to be served was no longer rural.

On December 15, 1972, the Commission overruled the Motion to Dismiss after an additional hearing to reconsider [170 Ind.App. 248] Lincoln's petitions as amended and supplemented.

On May 4, 1973, the Commission issued an Order granting Lincoln a certificate under IC 1971, 8--1--2--89 (Burns Code Ed.) to serve the same area which had been incorporated as the Town of Merrillville on December 30, 1971. In support of its Order, the Commission made the following findings of fact relating to its 'jurisdiction':

1. That proper publication of the legal notice of the hearings conducted by the Commission in this Cause was given and published by the Commission as required by law.

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2. That Lincoln Gardens Utilities Company, Inc. is a corporation organized and existing under the laws of the State of Indiana with corporate power and authority to own, operate and maintain a sanitary sewage disposal system and is a public utility subject to the jurisdiction of this Commission.

3. That Petitioner is presently rendering sewage disposal service in a rural area in Lake County, Indiana, Pursuant to Certificates of Territorial Authority issued by this Commission.

4. That Petitioner in this proceeding seeks a Certificate of Territorial Authority to render sanitary sewage disposal service in an area in Ross Township, Lake County, Indiana.

5. That August 30, 1971, was the date of the last publication of the legal notice of the hearing to be conducted by the Commission in this Cause on September 20, 1971.

6. That on August 30, 1971, the area for which the Petitioner seeks a Certificate of Territorial Authority was a rural as that term is defined in Chapter 313 of the Acts of 1957, Burns Ind.Stat.Ann. § 54--601c, IC 1971, 8--1--2--89.

7. That the jurisdiction of this Commission over the subject matter of this Cause, a request for a Certificate of Territorial Authority to render sewage disposal service in a rural area, was established when notice of time and place of public hearing was given more than ten days prior to the date set for hearing and the jurisdiction of this Commission continues throughout the proceedings. City of New Haven v. Ind. Suburban Sewers, Inc., Ind., 277 N.E.2d 361.

8. That the Commission has jurisdiction of the parties and the subject matter of this Cause.

Town and MCD now seek judicial review of this Order.

[170 Ind.App. 249] ISSUE

The sole issue for disposition is:

Did the Commission have the authority to grant a Certificate of Territorial Authority after the territory in question became a part of the Town, i.e., after it was no longer a 'rural area'?

PARTIES CONTENTIONS

The Town admits the area sought to be served by Lincoln was rural on July 12, 1971, when Lincoln first petitioned the Commission for Territorial Authority, and that the Commission lawfully acquired jurisdiction to consider Lincoln's petition pursuant to IC 1971, 8--1--2--89 (Burns Code Ed.), but the Town asserts the Commission subsequently lost jurisdiction when the area became a municipality on December 30, 1971. Further, it maintains the Commission is a regulatory agency which must have the power to act at the time of its decision, and therefore its finding of fact that it had jurisdiction to grant Lincoln this certificate on May 4, 1973, was completely erroneous and contrary to law.

Lincoln responds that once the Commission acquires jurisdiction upon the filing of a petition, this jurisdiction continues until the culmination of the proceedings and cannot be ousted by subsequent intervening events, even though these events are of such a character as would have prevented jurisdiction from attaching in the first instance. In addition, Lincoln characterizes the Commission and the Lake County Board of Commissioners as agencies with coordinate and concurrent jurisdiction over this disputed geographical area, thus activating the general rule that if one of two tribunals having concurrent jurisdiction has begun to exercise its jurisdiction over a case, its authority to further deal with the action becomes exclusive. Finally, Lincoln cites City of New Haven v. Indiana Suburban Sewers, Inc. (1972), 257 Ind. 609, 277 N.E.2d 361, for the proposition that subject [170 Ind.App. 250] matter jurisdiction is

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gained when notice of the hearing required by IC 1971, 8--1--2--89(f) (Burns Code Ed.) is published; and that once this jurisdiction attaches, it continues throughout the proceedings. DECISION

CONCLUSION--It is our opinion that after the territory in question became a part of the Town of Merrillville, the Commission no longer possessed the authority to grant a certificate of territorial authority for sewage disposal service.

The Public Service Commission of the State of Indiana has no common law ancestry. It is exclusively a creature of the Legislature. So we turn to the applicable statutes.

The Commission's authority to grant Lincoln a certificate is predicated upon IC 1971, 8--1--2--89 (Burns Code Ed.) ² which in relevant part states:

(b) It is hereby declared to be in the public interest to provide for the...