Payne, President v. Buchanan

148 N.E.2d 537, 238 Ind. 231, 1958 Ind. LEXIS 226

• Court: Indiana Supreme Court
• Decided: March 17, 1958
• Docket: 29,563
• Status: Published

Opinions

Achor, J.

This action was brought in the Vander-burgh Circuit Court by appellants (plaintiffs), members and officers of Unity Lodge Numbered 2040, International Association of Machinists, AFL-CIO, an unincorporated voluntary association and labor union, and Vanderburgh County Farm Bureau, Inc., a nonprofit corporation, against the Public Service Commission of Indiana to vacate and set aside an order granting a rate increase to the Southern Indiana Gas & Electric Company. The rate order sought to be vacated was entered on December 14, 1956. On the 59th day thereafter the complaint in this action was filed in the Circuit Court of Vanderburgh County. This is an appeal from a judgment of the trial court dismissing the action for lack of jurisdiction.

The motion to dismiss raised three points. The first deals with the time within which the action to review rate orders may be commenced; that is, whether such action was properly filed within 60 days under Acts of 1929, ch. 169, §2, p. 530 (being §54-430, Burns’ 1951 Repl.), or whether it must be filed within 30 days under Acts of 1933, ch. 190, §4, p. 928 (being §54-203, Burns’ 1951 Repl.).

The second point raised is concerned with the jurisdiction of the Vanderburgh Circuit Court to entertain this action for review.

The third point involves a question of the right to maintain such action in equity, regardless of the procedural requirements and limitations as provided in either the Acts of 1929 or 1933.

We take up the points in the order stated, beginning with the first. In 1929 the Legislature enacted a general statute which provided that an action to vacate or enjoin, the action of the Public Service Commission might be taken by “any person, firm, association, corporation, city, town or public utility,” which statute provided that the action be commenced within 60 days after the order is made. The pertinent parts of the statute read as follows:

“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.” (Our italics.) (Acts 1929, ch. 169, §1, p. 530.) (§54-429, Burns’ 1951 Repl.)

“Every such action shall be commenced within sixty [60] days after the entry or rendition by the public service commission of such decision, ruling, order, determination, requirement or direction complained of: . . . ” (Acts 1929, ch. 189, §2, p. 530.) (§54-430, Burns’ 1951 Repl.)

“Appeal from such judgment may be taken by any party thereto to the Supreme Court in the same manner as provided by law for appeals in civil actions. ...” (Acts 1929, ch. 169, §10, p. 530.) (§54-438, Burns' 1951 Repl.)

In 1933 the Legislature enacted a statute which dealt specifically with actions by “any single municipality or any ten consumers or any utility” for the review of rate orders (only) and provided a 30-day period within which an action could be brought. It further provided that the action could be brought in the circuit court of the county in which the utility was located or in the general term of the superior court of Marion County. This statute also contained several new provisions not contained in the former act. The parts with which we are concerned here read as follows:

“Any single municipality or any ten [10] consumers or any utility affected by a rate order may within thirty [30] days from the rendition thereof by the commission take an appeal de novo to the circuit court of the county in which the utility is located or the general term of the superior court of Marion County. Such appeal shall be filed with the clerk of the circuit court or with the clerk of the superior court of Marion County dependent upon the court to which such appeal is taken and when filed shall have precedent upon the calendar of said circuit court to be tried without a jury. Such appeal when taken to the general term shall have precedence upon the calendar of said general term of the superior court of Marion County and shall be tried immediately by the judges of said superior court sitting in banc without the intervention of a jury. From a judgment of the circuit court or from the general term of the superior court of Marion County an appeal in such cases shall lie to the Supreme Court which shall be perfected within thirty [30] days and shall have precedence in said court and should be considered by said court immediately in order that the business of the utility and the status of the consumer may be stabilized and expedited. The circuit court or the general term shall in every case enter an opinion in writing.

“Pending the appeals as in this section provided the utility affected by an order or judgment of the commission and/or general term shall have the right to collect the rate as fixed by said order or judgment or at the old rate, whichever is higher in amount, and shall refund the same to the consumer if such difference be not sustained finally or if such rate as fixed by the commission is sustained in the circuit court or general term or the Supreme Court and is found finally to be confiscatory, the said difference shall be the absolute property of the utility.” (Acts 1933, ch. 190, §4, p. 928; 1947, ch. 307, §1, p. 1251.) (§54-203, 1951 Repl.)

“All acts and parts of acts conflicting with the provisions of this act are hereby repealed insofar as they are inconsistent herewith; ...” (Acts 1933, ch. 190, §22, p. 928.) (§54-719, Burns’ 1951 Repl.)

Appellees cite the fact that the latter statute expressly repealed “all acts and parts of acts ’ conflicting with the provisions of this act” and assert that this provision supports their position that the latter statute repealed the former as to all rate cases. The provision, however, is merely a legislative reaffirmation of the fact that the general rule regarding repeal by implication should apply in construing this statute. The general rule has been stated as' follows:

“. . . (1) Repeals by implication are not favored; and (2) Where there are two acts on the same subject, effect should be given to both if possible; and (3) But, if the two are repugnant in any of their provisions, the later act, without any repealing clause, operates to the extent' of the repugnancy as a repeal of the first; and even when two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act. This is the rule adopted in the case of Kramer v. Beebe (1917), 186 Ind. 349, 355, 115 N. E. 83, ...” De Haven v. Municipal City of South Bend (1937), 212 Ind. 194, 198, 7 N. E. 2d 184.

However, it is contended by appellees that the 1933 Act does cover the whole subject of the 1929 Act as related to rate cases, and that since the latter act embraces many new provisions on the subject it must be construed to repeal the former act as to all rate cases, even under the general rule of repeal by implication.

Furthermore, in support of this position appellees rely upon the case of Griffin Telephone Corp. v. Public Service Com’n. (1956), 236 Ind. 29, 32, 35, 138 N. E. 2d , in which case this court stated, with reference to the two acts:

“As the two Acts are obviously in conflict in their application to the case before us, we are called upon to determine whether appellant could properly proceed in the court below pursuant to the 1933 Act, as it has attempted to do. (Our italics.)

“. . . Such act being valid and applicable to the procedure for obtaining a review of rulings of the Public Service Commission in rate cases, it follows that appellant’s complaint seeking a review under the 1933 Act was sufficient as against appellee’s motion to dismiss, . . .”

An examination of the Griffin case, supra, however, reveals an entirely different set of circumstances which this court should consider in determining whether the 1929 and 1933 statutes are in conflict as they bear upon the case before us.

As heretofore noted, the 1933 Act, which is of limited application, expressly applies to “Any . . . municipality or any ten [10] consumers or any utility. . . .” (Our italics.) In the Griffin case, supra, appellant -utility sought to vacate a rate order of the Public Service Commission pursuant to the 1933 Act, and appellee-commission contended the 1933 Act was unconstitutional and that appellant should therefore have proceeded under the previous 1929 Act. We refuted appellee’s contentions however in holding the 1933 Act constitutional, and therefore our observation that the acts were in conflict as they related to the facts of that case had nothing to do with the question of repeal, as related to parties not named in the act, as appellant was solely attempting to proceed under the later 1933 Act, which we held he had a right to do. Any question as to whether the 1929 and 1933 Acts were repugnant or irreconcilably in conflict so as to effect a repeal of the earlier act as to other parties not named in the latter act, was not at issue or treated in the case. In fact the opinion overtly omitted reference to associations and corporations when citing the conflict in the two acts.

It cannot be said with certainty that the 1933 Act covered the whole scope of the law regarding rate cases and thereby repealed the 1929 Act as to all such cases.¹ The 1929 Act is a general act relating to appeals from all actions of the Public Service Commission. The 1929 Act provided that appeals thereunder might be prosecuted by “Any person, firm, association, corporation, city, town or public utility. . . .” (§54-429) whereas the 1933 Act makes no reference to associations and corporations. Appellants here are an association and a corporation. The 1933 Act demonstrates no clear intent on the part of the legislature to deny associations and corporations not named therein the right of review as granted to them under the 1929 Act.

We conclude that there is no clear conflict between the 1929 Act and the 1933 Act as related to the facts in this case; that for this reason the 1933 Act fails to meet the test of repeal either under the repealing clause or by implication and therefore the action was timely filed under the 1929 Act.

Furthermore, in support of their position, appellants cite the fact that this court, in several cases² prior to the Griffin case, supra, has stated that both the Acts of 1929 and 1933 applied in appeals in rate cases. It is true that in these cases the actions were brought within the 30-day period of time fixed by the 1933 Act, and therefore the statements were only dicta. However, such statements of opinion, although not binding upon the court, were susceptible to advisory consideration by both the appellants and this court. State ex rel. v. Kaufman (1917), 186 Ind. 602, 117 N. E. 643. Because of these statements, which may well have influenced appellants to rely upon the 60-day limitation of the 1929 Act, and because the 1933 Act is, in fact, susceptible to a construction which omits these appellants from its applications, we are not now inclined to hold that appellants were limited to the 1933 Act. Rather, it is our duty to give effect to both acts where, as here, they are not clearly in conflict, and thereby permit appellants to have their day in court. Kramer v. Beebe (1917), 186 Ind. 349, 115 N. E. 83.

The second point raised by the motion to dismiss was that the complaint did not state with certainty the allegations necessary to invoke the jurisdiction of the Vanderburgh Circuit Court. Appellees rely upon the fact that the complaint did not specifically allege that the utility operated in Vanderburgh County. The allegation of appellants’ complaint regarding the jurisdiction of the Vanderburgh Circuit Court to entertain the proceedings is as follows:

“All the plaintiffs herein and many of the members who reside in Evansville, Vanderburgh County, Indiana and other counties in southwestern Indiana and many of whom are farmers who own and/or operate farms in southwestern Indiana, are consumers and rate payers of said Southern Indiana Gas and Electric Company and are adversely aff.ected by said order of the Public Service'■ Commission.”.

The 1929 Act under which this action was brought provides that such action shall be filed “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.” (§54-429, supra.) It is appellees’ contention that the mere allegation that “all the plaintiffs herein . . . reside in Evansville, Vanderburgh County, Indiana, . . . are consumers and rate payers” is not an unequivocal allegation that they received such service at their residence in Vanderburgh County. Ap-pellees cite the fact that, notwithstanding the allegations quoted above, the appellants could reside in Evansville, Vanderburgh County, and still be consumers and rate payers in other counties in southwestern Indiana.

Appellees assert that definite and certain allegations are necessary to invoke the jurisdiction of the Vanderburgh Circuit Court in this case and that the above allegation does not meet this requirement. In support of their position appellees rely upon the rule that where a special statutory action is brought, all necessary jurisdictional averments must appear in the complaint.³ Appellees rely upon the following cases as sustaining their contention. In State ex rel. Ayer v. Ewing (1952), 281 Ind. 1, 14, 106 N. E. 2d 441, this court stated the rule as follows:

“. . . that in any special statutory proceedings whatever, all jurisdictional averments required by the statute under which the proceedings is based must be contained in the petition or the court in which it is filed, . . . will be without jurisdiction in the case, , except to enter an order dismissing the case.” (Our italics.)

Also in the case of Ballman v. Duffecy (1951), 230 Ind. 220, 228-229, 102 N. E. 2d 646, this court stated:

“. . . Appellants in the case at bar failed to present their petition to the court within the thirty days prescribed by the statute. The statutory procedure and requirements for the review of a decision of the board of zoning appeals were not complied with, and the court did not acquire jurisdiction of the parties and this particular case. This being a statutory proceedings, a strict compliance with'the terms of the statute is required.”

For the reason stated in the above cases appellees assert that the allegation of the complaint before us is not sufficient to satisfy the jurisdictional requirement of the 1929 Act (ch. 169, §1, p. 530) (§54-429, Burns’ 1951 Repl.) that the utility operated in Vanderburgh County.

The above contention requires a careful analysis of the Ayer and Ballman cases, supra. These cases correctly state the law upon the facts therein presented. However, each is distinguishable from the case before us. The action of the Ayer case, supra, was for the impeachment of a township trustee. As stated in that case:

“The statute in question (§49-836, Burns’ 1951 Replacement) attempts to authorize the bringing of an impeachment action by a verified accusation presented to a circuit court, alleging that any officer within the jurisdiction of the court ‘has been guilty’-:

(1) of charging and collecting illegal fees for services rendered, or to be rendered, in his office, or

(2) ' has refused or neglected to perform the official duties pertaining to his office.

Unless the verified written charge as filed contains one or both of these averments the trial court is without jurisdiction to act in the case. The only averment in the verified written charge is that the relator, Frank Ayer, as township trustee, 'did neglect and refuse to consider the request and application of Robert Foertsch (and another) for employment as a teacher in the schools of Hammond Township, Spencer County, Indiana, during the school year 1951 and 1952.... ’ The alleged reasons for the trustee’s refusal are unimportant. . . . (231 Ind. at pp. 6-7.)

... It cannot be said that because he did not consider, appoint or employ Robert Foertsch (and another) as teachers, he neglected or refused to perform his official duties. State v. McRoberts (1934), 207 Ind. 293, 298, 299, 192 N. E. 428. (231 Ind. p. 8.)

. . . The only question raised by the petition and the response, and by the accusation and the objections thereto, is not whether the 'complaint’ is sufficient as against demurrer or similar pleading but whether the verified accusation states the facts essential to give the respondents jurisdiction under the statute involved. . . .” (Italics supplied.) (231 Ind. p. 9.)

... It has been well stated by competent authority that '. . . impeachment proceedings are highly penal in their nature and generally governed by rules of law applicable to criminal causes, so that provisions of statutes and of the constitution on the subject of procedure therein are to be construed strictly. . . .’ 67 C. J. S., Officers—Impeachment, §68, p. 295, Cl. (c) Procedure, pp. 296, 297.” (Our italics.) (231 Ind. p. 11.)

“Complaints” which charge penal offenses under special statutes must so completely allege the facts constituting the offense as to exclude every possible factual situation to the contrary. The Ayer case, supra, involved such a statutory proceedings. It is for that reason that in the Ayer case it was necessary to strictly plead all the jurisdictional averments required by the particular special statute.

However, the opinion in the Ayer case, supra, does not purport to hold that the same strictness of pleading which is required in penal impeachment or criminal proceedings is also required in other actions where the relief sought is merely remedial. The relief sought in this case is merely remedial and therefore the same reasoning of strictness of pleading does not apply.

Also the Ballman case, supra, is distinguishable from this case upon the facts. That case involved the special zoning statute which specifically provided the procedural steps to be followed and fixed the time limitation for presenting a petition of cer-tiorari to the court to review the decision of the board of zoning appeals. Our courts have uniformly held that compliance with the time limitations of statutes regulating appeals is jurisdictional. In such statutes time is of the essence. Therefore, under the facts in the Ballman case, supra, this court correctly stated:

“. . . Appellants in the case at bar failed to present their petition to the court within the thirty days prescribed by the statute. The statutory procedure and requirements for the review of a decision of the board of zoning appeals were not complied with, and the court did not acquire jurisdiction of the parties and this particular case. This being a statutory proceeding, a strict compliance with the terms of the statute is required.” (230 Ind., pp. 228-229.)

In the Ballman case, supra, this court was dealing with a specific procedural act required by the statute and correctly held that strict compliance with the procedural terms of the statute was jurisdictional. However, in the case before us there was no omission of any procedural step required by the statute. The question here is merely one of . the sufficiency of an allegation made in the complaint to establish the venue of the court over the particular case. Appellants’ allegations that they were (1) residents of Vanderburgh County, and (2) consumers of the appel-lee-utility, and (3) adversely affected by the rate increase order, were sufficient to carry a clear implication that appellee-utility operated in Vanderburgh County. These were all the allegations necessary to invoke the jurisdiction of the Vanderburgh Circuit Court under the 1929 Act. There is, therefore, in this case no ommission of any procedural step required by the statute, nor is there a failure to allege any jurisdictional fact necessary to invoke the court’s jurisdiction.

It is true that the above allegations of fact,'intended to establish appellants’ right of action and the venue of the case, were not as precisely made as could have been. However, the statements were sufficient under common usage to sustain a clear inference that usage was at the place of residence. The question then is whether, because the allegations might admit of proof contrary to the clear inference of the allegations, appellants should as a matter of law be denied their day in court.

The case of Delaware Tp. v. Board, etc. (1901), 26 Ind. App. 97, 99, 59 N. E. 189, also involved the question of jurisdiction over the subject-matter of a proceedings based upon a special statute. In that case Ripley County sued Delaware Township for an amount it was under statutory duty to pay but the county, in its pleading, did not allege that the township was in Ripley County and, for that reason, the township claimed that the Ripley Circuit Court did not have jurisdiction. The Appellate Court held that, “. . . there is enough in the complaint, although-, loosely drawn, to show the appellant township is in Ripley. County, Indiana,- and hence .within the jurisdiction of Ripley Circuit Court.” . . :• . '. .

The public policy of this state regarding- the construction of pleadings in civil proceedings generally has been specifically stated by statute. Acts 1881 (Spec. Sess.), ch. 38, §126, p. 240 (§2-1048,. Burns’ 1946 Repl.) states: “In the construction of a pleading; for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties; . (Our italics.)

In view of the above cited statute and case we feel that, while the allegation of jurisdiction may not have been precise in its nature, to paraphrase from the -Delaware case, supra, there is enough in the pleading, though loosely drawn, to show that many of the appellants resided in Evansville, Vanderburgh County, and that those who resided in Evansville received electrical service of the Southern Indiana Gas & Electric Company at their places of residence. It necessarily followed that if they were users in Vanderburgh County, they were adversely affected by the raise in rates and that the utility operated in that county. To dismiss this case because of the non-all-exclusiveness of the pleading regarding undisputed facts in this case would be to construe so strictly the statute (§54-429, supra) as to deny substantial justice contrary to the public policy, so declared by the statute (§2-1048, supra).

Finally, in opposition to the motion to dismiss, appellants suggest that they may proceed at common law or in equity, irrespective of the statutory provision in the Acts of 1929 and 1933. Because of the -decision we have reached in this case, a ruling upon this issue is not necessary. However, since the issue has been raised, we note that the question has been before this court previously and has been determined adversely to appellants’ contention. We have recently stated:

"... However, where the statute provides for a procedure for such review or for a judicial remedy, it excludes any common law or equitable procedure to the extent such statutory provisions are adequate in protecting and preserving such substantive rights guaranteed by the constitution, the statutes or general principles of law. Such statutory procedure must be followed at least to the extent of the remedy available before resort is made to any common law or equitable remedy.” (cases cited.) Pub. Serv. Comm. et al. v. City of Indianapolis (1956), 235 Ind. 70, 83, 131 N. E. 2d 308.

For the reasons hereinabove stated judgment is reversed, and the case is ordered reinstated for further appropriate proceedings.

Reversed.

Bobbitt and Landis, JJ., concur. Arterburn, J., dissents with opinion. Emmert, C. J., concurs in dissenting opinion.

1 . Both the 1929 and 1933 Acts have since been expressly repealed by Acts of 1957, ch. 189, §§1-11, p. 395 (§§54-443 — 453, Burns’ 1957 Supp.)

2 . Pub. Ser. Comm. et al. v. City of Indianapolis (1956), 235 Ind. 70, 131 N. E. 2d 308; Pub. Ser. Comm. et al., etc. v. Ind. Bell Tel. Co. (1955), 235 Ind. 1, 130 N. E. 2d 467; Terre Haute Gas Corporation v. Johnson (1942), 221 Ind. 499, 45 N. E. 2d 484, 48 N. E. 2d 455.

3 . See, Lowe’s Revision of Works’ Indiana Practice, Vol. 1, §§13.19 and 13.21.