Northern Indiana Public Service Co. v. Warren County Rural Electric Membership Corp.

205 N.E.2d 166, 138 Ind. App. 581, 1965 Ind. App. LEXIS 546
CourtIndiana Court of Appeals
DecidedMarch 15, 1965
DocketNo. 20,005
StatusPublished
Cited by1 cases

This text of 205 N.E.2d 166 (Northern Indiana Public Service Co. v. Warren County Rural Electric Membership Corp.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northern Indiana Public Service Co. v. Warren County Rural Electric Membership Corp., 205 N.E.2d 166, 138 Ind. App. 581, 1965 Ind. App. LEXIS 546 (Ind. Ct. App. 1965).

Opinion

Carson, J.

This is an appeal from an order of the Public Service Commission of Indiana authorizing the purchase of the municipally owned electric distribution system of the Town of Oxford, Indiana by the Warren County R.E.M.C. for the sum of $175,000.00 and for other related authorizations concerning the operation of the system. The proceedings were instituted by a joint petition of the Warren County R.E.M.C. and the Town of Oxford pursuant to the provisions of the Acts of the General Assembly of Indiana 1935, ch. 175 as amended, (§ 55-4403, et seq. Burns’ 1962 Replacement, Supp.) and the provisions of the 1905 Acts of the General Assembly of Indiana, ch. 147, (§ 48-7210 Burns’ 1950 Replacement). A discussion of the actions of the Town of Oxford and the Warren County R.E.M.C. in compliance with the statutes follows.

The seller, Town of Oxford, is a municipality which owns a utility and in the sale of a portion thereof is governed by the Municipality Utility Act (§48-7211 Burns’ 1963 Replacement), which requires the circuit court to appoint three appraisers to make a “just and true valuation” and to determine “the price at which such property may be sold.” The purchaser, Warren County R.E.M.C., is an electric utility under the R.E.M.C. Act (§ 55-4403 Burns’ 1951 Replacement), which defines the permissive “territory” a R.E.M.C. may serve as including a municipality which has a municipal utility which the R.E.M.C. proposes to buy, if the population is not over 1500 and if the “aggregate depreciated value” of the portion of the utility being purchased does not exceed $100,000.

The Town of Oxford followed the procedure of the Municipality Utility Act and three court appointed appraisers determined the “just and true valuation” and the “price at which such property may be sold” to be $173,000. The Warren County R.E.M.C. was the only bidder and entered into a contract to purchase the electric distribution system for $175,000. No one questioned the sale or sale price within the time al[583]*583lowed under the Municipality Utility Act, and this was not an issue before the Commission.

Following the publication of notices the Northern Indiana Public Service Company filed an amended petition for leave to intervene and a motion to dismiss the joint petition filed by the Warren County R.E.M.C. and the Town of Oxford. The Public Service Commission of Indiana granted leave to intervene but denied the motion to dismiss.

After hearing, the Public Service Commission entered an order approving the sale by the Town of Oxford and the acquisition of the distribution system by the Warren County R.E.M.C., finding that public convenience and necessity would best be served by permitting the sale and purchase, and that the contract should be approved. The order embraced several other matters which are not necessary for the Court’s consideration in the disposition of this appeal.

The Northern Indiana Public Service Company assigned as error thirteen propositions which read as follows:

“1. The final decision, ruling and order of the Public Service Commission of Indiana entered on March 15, 1963, is contrary to law.
2. The said final decision, ruling and order of the Commission is not supported by substantial evidence.
3. There is no evidence to support the said final decision, ruling and order of the Commission.
4. There is no substantial evidence to sustain Finding No. 4 of the Commission at page 7 of the Commission’s order of March 15, 1963, to wit: (Transcript Page 571)
‘4. That the aggregate depreciated value of the distribution system owned by the Town of Oxford being sold to the Warren County Rural Electric Membership Corporation is less than $100,000.00.’
5. There is no evidence to sustain said Finding No. 4 which is set out in paragraph 4 of this Assignment of Error.
6. There is no substantial evidence to sustain Finding No. 5 of the Commission at page 7 of the Commission’s order of March 15, 1963, to wit: (Transcript Page 571)
[584]*584‘5. That the public convenience and necessity would best be served by permitting Petitioner Warren to purchase the electric distribution system of Petitioner Town of Oxford, for Petitioner Town of Oxford thereupon to cease said electric utility operation and for Petitioner Warren thereafter to render electric service within said municipal area, charging rates as per its currently filed tariff.’
7. There is no evidence to sustain said Finding No. 5 which is set out in paragraph 6 of this Assignment of Errors.
8. There is no substantial evidence to sustain Finding No. 8 of the Commission at page 7 of the Commission’s Order of March 15, 1963, to wit: (Transcript Page 572)
‘8. That Petitioner Warren County Rural Electric Membership Corporation should be permitted to amend its Articles to include the municipal area of the Town of Oxford, the proposed Amendment of Articles should be approved as submitted, and a certificate of public convenience and necessity should be issued to Petitioner Warren County Rural Electric Membership Corporation to render electric service in the municipal area of the Town of Oxford, Indiana.’
,9. There is no evidence to sustain said Finding No. 8 which is set out in paragraph 8 of this Assignment of Errors.
10. The Commission erred in that said order is not authorized by any statute and is contrary to applicable statutes.
11. The Commission erred in that, assuming arguendo, there was substantial evidence to sustain a finding that the distribution system in question had an aggregate depreciated value of less than $100,000, it would be an abuse of discretion to approve the acquisition thereof for $175,000. The Commission made no finding as to whether the aggregate depreciated value is $1 or $99,999. In the former event the Commission has authorized purchase for 175,000 times the amount of such value and in the latter for a purchase at almost twice such value. In any event, such authorization is arbitrary and capricious and a gross abuse of discretion by the Commission.
12. The Commission erred in that its said order is arbitrary and capricious and constitutes a gross abuse of discretion in finding that the aggregate depreciated value of the distribution system in question is less than $100,000.
13. The Commission erred in overruling each and all of [585]*585petitioners motions to dismiss and each and every said ruling and order is error.”

The appellee assigns cross errors which will not be considered or discussed since the disposition of the assignments of error filed by the appellant will adequately dispose of the appeal herein considered.

Assignment of error number one presents all questions pertinent for this Court to consider in an appeal from the Public Service Commission. § 55-443 Burns’ 1951 Replacement, Supp. In a review of finding and orders of the Public Service Commission our function is to determine whether or not the findings of the commission are based upon the evidence and if those findings support the decision. Pub. Ser. Comm. et al., etc. v. Ind. Bell Tel. Co. (1955), 235 Ind. 1, 130 N. E. 2d 467; Daviess-Martin Co.

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205 N.E.2d 166, 138 Ind. App. 581, 1965 Ind. App. LEXIS 546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northern-indiana-public-service-co-v-warren-county-rural-electric-indctapp-1965.