City of Amherst v. Public Utilities Commission

348 N.E.2d 330, 46 Ohio St. 2d 256, 75 Ohio Op. 2d 297, 1976 Ohio LEXIS 627

• Court: Ohio Supreme Court
• Decided: May 19, 1976
• Docket: Nos. 75-535, 75-536 and 75-537
• Status: Published

Opinions

Per Curiam.

The principal question raised by this appeal is whether the Public Utilities Commission had the authority in case No. 75-536 to exercise the emergency powers granted to it in R. C. 4909.16.

R. C. 4909.16 (former Gr. C. 614-32) grants to the Public Utilities Commission “* * * extraordinary and special powers in the event jt determines that an emergency exists.” Cincinnati v. Pub. Util. Comm. (1948), 149 Ohio St. 570, 575, 80 N. E. 2d 150.

R. C. 4909.16 states:

“When the Public Utilities Commission deems it necessary to prevent injury to the business or interests of the public or of any public utility of this state in ease of any emergency to be judged by the commission, it may temporarily alter, amend, or, with the consent of the public utility concerned, suspend any existing rates, schedules, or order relating to or affecting any public utility or part of any public utility in this state. Rates so made by the commission shall apply to one or more of the public utilities in this state, or to any portion thereof, as is directed by the commission, and shall take effect at such time and remain in force for such length of time as the commission prescribes.”

In the present case, the record amply supports the decision of the commission that an emergency existed and that the rates charged to that portion of Ohio-Edison’s customers involved in these three appeals should be temporarily increased to prevent the emergency then facing the utility.

However, appellants in case No. 75-536 urge that R. C. 4909.40 precludes the commission from exercising the emergency powers where the municipalities have passed rate-fixing ordinances. This court disagrees. The same argument was presented to this court in Cincinnati v. Pub. Util. Comm., supra (149 Ohio St. 570). The syllabus of that decision states:

“During an appeal to the Public Utilities Commission by a public utility from a rate-fixing ordinance, where there is at the time no contract between the municipality and utility as to the furnishing of utility services or products, the commission has jurisdiction and power under Section 614-32, General Code [now R. C. 4909.16], if it finds an emergency exists, to establish and enforce interim rates to prevent injury to the public or utility, pending determination of such appeal. (City of Cleveland v Public Utilities Commission, 126 Ohio St., 91, overruled.)”

The only essential difference between the present appeal and Cincinnati is that here the utility elected to charge the ordinance rate pursuant to R. C. 4909.38, but in Cincinnati, the utility elected to charge the pre-existing rate pursuant to G. C. 614-45 (now R. C. 4909.38).' That difference does not, however, change the result reached in Cincinnati'. Whichever election the utility makes pursuant to R. C. 4909.38, the resulting rate pending appeal is one ordained by statute and not one set by the ordinance itself.

Therefore, R. C. 4909.40 has no application in either case. Of course, where the utility accepts the ordinance, an ordinance contract is formed and the prohibition of R. C. 4909.40 squarely applies.

With regard to the other errors assigned by appellants, the court finds that the order of the commission was not unreasonable or unlawful, particularly in light of the broad powers conferred on the commission under R. C. 4909.16 once it has determined that an emergency exists.

For the foregoing reasons, the order of the commission is. affirmed.

Order affirmed.

O’Neill, C. J., Herbert, Corrigan, Stern, W. Brown and P. Brown, JJ., 'concur.