State Ex Rel. Evansville City Coach Lines v. Rawlings

99 N.E.2d 597, 229 Ind. 552, 1951 Ind. LEXIS 191

• Court: Indiana Supreme Court
• Decided: June 25, 1951
• Docket: 28,779 and 28,780
• Status: Published

Opinions

Bobbitt, J.

The cases out of which these actions grow involved identical questions and were consolidated for hearing on restraining order by the trial court. These actions were consolidated for briefing before this court, and they are so treated in this opinion.

Charles Tinsley, as President and Representative of the Evansville Industrial Union Council, Congress of Industrial Organizations, and Walter Hayden, Secretary of said organization, filed their complaint in two paragraphs in the Superior Court of Vanderburgh County on April 17, 1951, against Evansville City Coach Lines, Inc. and the Public Service Commission of Indiana and the members thereof. Among other things said complaint alleged that said Evansville City Coach Lines, Inc. filed a schedule of a proposed new tariff and bus fares applicable to its lines and routes in the city of Evansville, Indiana, to become effective January 15, 1951; that the said C. I. 0. Union filed objections and a protest to the granting of the rate proposed by said tariff, which was designated No. B-4; that a hearing was held by the Public Service Commission of Indiana upon said protest and subsequently an order was issued by the commission suspending the operation of said new Tariff No. B-4 for a period of ninety days; that thereafter, on April 3, 1951, and while Tariff No. B-4 was still under suspension, said company filed with the Public Service Commission of Indiana its proposed tariff schedule No. B-5; that neither, the commission nor the company, notified the union or its attorney of the filing of said schedule No. B-5; and that because of said failure to notify said union or its attorney they were denied the right to file objections and protest to the commission against the rates proposed in said schedule B-5, and that because of such failure of notice the members of said union were deprived of their property without due process of law and were discriminated against by such action of the commission. It is further alleged in paragraph two of said complaint that the putting into effect the scheduled rates provided by said Tariff No. B-5 caused the membership of the union to suffer irreparable injury and loss, and that they are, by such action, deprived of their property without due process of.law.

By paragraph one of their complaint said plaintiffs seek to have the action of the Public Service Commission of Indiana, in permitting the rates as set out in schedule B-5 to become effective, set aside, or, in the alternative, to compel the commission to rule upon schedule B-4 which was under suspension at the time of the filing of schedule B-5. By paragraph two of said complaint said plaintiffs seek to enjoin the Evansville City Coach Lines, Inc. from collecting .fares at the rates provided in said Tariff No. B-5, and further, that said company be mandated to charge the schedule of fares as provided in Tariff No. B-3, and that the Public Service Commission of Indiana be restrained and enjoined “from taking any steps whatsoever to interfere with the Company’s Tariff No. B-3 so filed with the Public Service Commission of Indiana,” and that upon a final hearing said temporary injunction be made permanent.

Also, on April 17, 1951, James Payne, as President and Representative of Local 813, United Electrical, Radio & Machine Workers of America, filed his complaint against the Evansville City Coach Lines, Inc. and the Public Service Commission of Indiana and the members thereof, making similar allegations and asking similar relief as were made and asked in the complaint filed by the C. I. 0. union.

On the day of the filing of the above complaints, the Judge of the Superior- Court of Vanderburgh County, after consolidating the two causes, issued a restraining order, without notice, restraining and enjoining the Evansville City Coach Lines, Inc. from enforcing the provisions of Tariff No. B-5 and from collecting from the revenue passengers any fares in excess of those provided for in Tariff No. B-3, and restraining and enjoining the Public Service Commission of Indiana and the members thereof, and their employees, from permitting the' said Evansville City Coach Lines, Inc. to enforce the provisions of Tariff No. B-5, and from enforcing or collecting any fares other than those provided in its Tariff No. B-3 and supplements thereto, until further order of the court.

On April 23, 1951 relator herein filed these actions praying that a writ of mandate and prohibition issue to restrain further action by the Judge of the Vanderburgh Superior Court and the Vanderburgh Superior Court in the two proceedings there pending.

Respondent contends that he has jurisdiction in said causes number B-9429 and number B-9430 now pending in said Superior Court of Vanderburgh County (1) because plaintiffs in those actions have no adequate remedy at law whereby their rights may be determined in a court of competent jurisdiction; (2) that relator, by filing with the Commission its Tariff No. B-5 at a time when a suspended Tariff No. B-4 was pending before the commission, violated an order of the commission suspending said Tariff No. B-4; and (3) that the action of the Public Service Commission of Indiana in permitting said Tariff No. B-5 to become operative without notice to the plaintiffs in said causes number B-9429 and number B-9430 denied them and the persons whom they represented due process of law.

Relator contends that the exclusive right, jurisdiction and powers to fix fares and charges applicable to common carriers by motor vehicles is vested in the Public Service Commission, and that the Superior Court of Vanderburgh County is without jurisdiction to set aside and enjoin the enforcement of a tariff filed with the Public Service Commission in the manner provided by law, and thereby determine the question of what rates shall be charged by the Evansville City Coach Lines, Inc.

First: We shall consider respondent’s contentions that plaintiffs had no adequate remedy at law and that relator, by its action in filing Tariff No. B-5, violated an order of the commission. Section 47-1215, Burns’ 1940 Replacement provides:

“Upon complaint in writing filed with the commission or upon the commission’s own initiative without complaint, the commission may investigate whether or not any person subject to the provisions of this act has failed to comply with any provisions of this act or with any requirement established pursuant thereto.

“If the commission, after notice and hearing, finds, upon any such investigation, that such person has failed to comply with any such provision or requirement, the commission shall issue an appropriate order to compel such person to comply therewith.”

It is clear, by the terms of the statute above quoted, that if relator, as alleged in respondent’s return, is violating an order of the Public Service Commission, the remedy lies in petition to the commission by those who claim that such a regulation or order is being violated. This court said in Chicago, etc., R. Co. v. Railroad Com., etc. (1911), 175 Ind. 680, at page 637, 95 N. E. 364, “Injunctions will not be granted where there is an adequate legal remedy. Where the commission has power to grant relief, application therefor must he made to it. Southern Ind. R. Co. v. Railroad Com., etc. (1909), 172 Ind. 113 [87 N. E. 966]; Prentis v. Atlantic Coast Line Co. (1908), 211 U. S. 210, 29 Sup. Ct. 67, 53 L. Ed. 150; Texas etc., R. Co. v. Abilene, etc., Oil Co. (1907), 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553; Interstate Commerce Com. v. Illinois Cent. R. Co. (1909), 215 U. S. 452, 30 Sup. Ct. 155, 54 L. Ed. 280.” (Our italics).

The United States Supreme Court, in an action brought by the Illinois Central Railroad Company against the Interstate Commerce Commission to set aside, annul and enjoin the enforcement of an amended order of the commission, speaking through Justice Sutherland, in United States v. Illinois Central R. Co. (1934), 291 U. S. 457, 54 S. Ct. 471, 78 L. Ed. 909, at page 917 said:

“If the preliminary order be erroneous in any particular, it is susceptible of correction by the commission upon the hearing thus provided for. It will be time enough for appellees to seek the aid of a court of equity when they shall have fully availed themselves of this administrative remedy, and the commission shall have taken adverse action. Until then they are in no situation to invoke judicial action.”

If, as is contended by respondent, relator is charging illegal rates in the city of Evansville and thus violating an order or regulation of the Public Service Commission plaintiffs, in the actions pending in said Superior Court, must first exhaust their remedy of petition to the commission by pointing out that said company is not complying with the provisions of an approved tariff schedule and is thereby violating an order of the commission. Indianapolis Water Co. v. Moynahan Prop. Co. (1936), 209 Ind. 453, 456, 198 N. E. 312; Southern Ind. R. Co. v. Railroad Com., etc. (1909), 172 Ind. 113, 117, 119, 87 N. E. 966, supra; In Re Engelhard & Sons Co. (1914), 231 U. S. 646, 651, 34 S. Ct. 258, 58 L. Ed. 416, 418.

It then becomes the duty of the Public Service Commission to make an investigation of the matters alleged in said petition and if, after notice and hearing, it should find that illegal rates are being charged by relator then the commission, under the authority vested in it by the legislature, will order the offender to desist from charging such illegal rates and if, after such prder by the commission, such offender refuses to comply therewith, then the commission is the proper party to institute court proceedings to compel compliance with its order. Wabash R. Co. v. Railroad Com., etc. (1911), 176 Ind. 428, 439, 95 N. E. 673. On the other hand, if after such investigation the commission finds that the alleged violation does not exist and no order is being violated, then the petitioners may have their day in court by an appeal to any court of competent jurisdiction upon the ground that the order or decision of the commission is “insufficient, unreasonable or unlawful” as provided in § 47-1249, Burns’ 1940 Replacement. Cf. State ex rel. McCormick v. Superior Court of Knox County (1951), 229 Ind. 118, 95 N. E. 2d 829, 832; In re Northwestern Indiana Tel. Co. (1930), 201 Ind. 667, 171 N. E. 65.

Second: In considering respondent’s contention that due process of law was denied plaintiffs in said actions, it is necessary for us to determine, only, whether or not notice to the plaintiffs in the actions below, and to the users of the service rendered by relator in the city of Evansville was required under the circumstances in this case. Section 47-1227, Burns’ 1940 Replacement provides:

“47-1227. Tariffs on common carriers by motor vehicle.— (a) Every common carrier by motor vehicle shall file with the commission and print and keep open to public inspection, tariffs showing all rates, fares, charges for transportation, and all service in connection therewith, ■ of passengers or property in intrastate commerce between points on its own route and between points on the route of any other such carrier or on the route of.any common carrier by railroad, both steam and electric, when and as through routes and joint rates are established. Such rates, fares and charges shall be stated in money of the United States. The public service commission may prescribe the form and manner in which such tariffs shall be published and may reject any tariff filed with it which is not in compliance with this section and when so rejected, such tariff shall be void and its use shall be unlawful.

“ (b) No common carrier by motor vehicle shall charge or demand or collect or receive a greater or less or different compensation for transportation or for any service in connection therewith between points enumerated in such tariff than the rates, fares and charges specified in the tariffs in effect at the time, and no such carrier shall refund or remit in any manner or by any device, directly or indirectly, personally or by agent, any portion of rates, fares or charges so specified nor extend to any person any facilities for transportation except such as are specified in its tariffs.

“(c) No change shall be made in any rate, fare, charge or classification or any rule, regulation or practice except after ten (10) days’ notice of the proposed change. Such notice shall plainly state the change proposed to be made and the effective date thereof. The commission may, in its discretion and for good cause shown, allow changes upon notice in less time than herein specified and permit tariffs to be filed and become effective in particular instances on shorter notice than stated herein.

“ (d) No common carrier by motor vehicle shall engage in the transportation of passengers or property unless such tariffs have been filed and published in accordance with the provisions of this act. (Acts 1935, Ch. 287, § 17, p. 1412.)” (Our italics.)

The notice provided in paragraph (c) of said section does not require the Public Service Commission or the carrier to give notice to the public generally or to those who use the service of the carrier. Raymond Lumber Co. v. Raymond Light & W. Co. (1916), 92 Wash. 330, 159 Pac. 133, L. R. A. 1917C 574. The purpose of the ten days’ notice therein provided is to inform and apprise the Public Service Commission of an intention on the part of a common carrier by motor vehicle to make a change in its present rate, fare, charge, classification, rule, regulation or practice. After ten days from the date of filing of notice with the commission of such change in rates, fares, or other changes, as provided in said paragraph (c), and if no objections have been filed to such proposed change, and the commission takes no action thereon, the new rates and charges become effective as a matter of law and they have the same force and effect as if specifically fixed by the legislature. Midland Realty Co. v. Kansas City P. & L. Co. (1937), 300 U. S. 109, 57 S. Ct. 345, 81 L. Ed. 540, 544; Public Service Commission v. Pavilion Natural Gas Co. (1921), 232 N. Y. 146, 133 N. E. 427; 43 Am. Jur., Public Utilities and Services, § 206, p. 710.

The Public Service Commission, in the fixing of rates and charges, is exercising a power delegated to it by the legislature. State, ex rel. v. Lewis (1918), 187 Ind. 564, 569, 120 N. E. 129; Southern Ind. R. Co. V. Railroad Com., etc. (1909), 172 Ind. 113, 87 N. E. 966, supra; Midland Realty Co. v. Kansas City P. & L. Co. (1937), 300 U. S. 109, 57 S. Ct. 345, 81 L. Ed. 540, supra.

As is the case here, where there is no specific constitutional or statutory requirement therefor, notice of proceedings before a public utility commission is not essential to the validity of the commission’s acts. 51 C. J., Public Utilities, § 105, p. 56.

Due process of law does not require a hearing prior to the taking effect of rates filed under the provisions of said § 47-1227, Burns’ 1940 Replacement where no objection has been filed and no action has been taken thereon by the Public Service Commission, within the ten day period as prescribed in paragraph (c) of said section. Campbell v. Heiss (1944), 222 Ind. 297, 301, 53 N. E. 2d 634; Clift v. Southern R. Co. (1919), 188 Ind. 472, 124 N. E. 457; Crane v. Hahlo (1922), 258 U. S. 142, 147, 42 S. Ct. 214, 66 L. Ed. 514, 517; Home Teleph. & Teleg. Co. V. Los Angeles (1908), 211 U. S. 265, 29 S. Ct. 50, 53 L. Ed. 176; Phillips v. Commissioner of Internal Revenue (1931), 283 U. S. 589, 51 S. Ct. 608, 75 L. Ed. 1289; American Surety Co. v. Baldwin (1932), 287 U. S. 156, 53 S. Ct. 98, 77 L. Ed. 231.

It is apparent from the foregoing that none of the constitutional rights of the plaintiffs in the actions number B-9429 and number B-9430 in the Superior Court of Vanderburgh County have

been violated either by the relator herein or by the Public Service Commission of Indiana, and this being true the court cannot assume jurisdiction therein and thereby interfere with the legislature’s power over the fixing of rates for common carriers by motor vehicles. Southern Ind. R. Co. v. Railroad Com., etc. (1909), 172 Ind. 113, 130, 87 N. E. 966, supra.

Third: Section 47-1215, Burns’ 1940 Replacement provides:

“The commission is hereby vested with power and authority to supervise and regulate every motor carrier subject to the provisions of this act, to fix just and reasonable rates, fares and charges, and to prescribe classifications, rules and regulations pertaining thereto, all of which shall be just and reasonable; to regulate and supervise the schedules, service, safety, methods and hours of operating the same.”

By the above provision the legislature has delegated to the Public Service Commission of Indiana the exclusive power of regulating and fixing fares to be charged by the relator. Stuck v. Town of Beech Grove (1929), 201 Ind. 66, 76, 163 N. E. 483; City of Logansport v. Public Service Comm. (1931), 202 Ind. 523, 534, 177 N. E. 249, 76 A. L. R. 838; City of Huntington v. Northern Ind. Power Co. (1937), 211 Ind. 502, 511, 5 N. E. 2d 889, 6 N. E. 2d 335; N. Y. Central Railroad Co. v. Pub. Service Com. (1937), 212 Ind. 329, 336, 7 N. E. 2d 957; Pub. Ser. Com. v. Indianapolis Railways (1947), 225 Ind. 30, 39, 72 N. E. 2d 434; Schisler v. Merchants Trust Co. (1950), 228 Ind. 594, 600, 601, 94 N. E. 2d 665; McCardle v. Akron Tel. Co. (1928), 87 Ind. App. 59, 64, 156 N. E. 469, 160 N. E. 48; 3 Pond, Public Utilities, § 946, p. 1951.

The effect of the restraining order issued by the Superior Court of Vanderburgh County is to fix the rates which the Evansville City Coach Lines, Inc. can charge for transporting passengers within the limits of the city of Evansville, in the amounts as set out in their tariff schedule Number B-3. If it should be made permanent the effect would be to fix the rates which this carrier could charge in the amounts as set up in said schedule Number B-3 permanently, or until such injunction might be dissolved by the court; and the Public Service Commission would be enjoined from changing or altering said rates or fixing a new schedule of rates and thus permanently enjoined from the performance of a duty which is specifically imposed upon it by the legislature. Indianapolis Water Co. v. Moynahan Prop. Co. (1936), 209 Ind. 453, 456, 198 N. E. 312, supra.

The power to fix rates for public utilities is a legislative function and this court has consistently held that courts cannot invade the province of the legislature. Langenberg v. Decker (1892), 131 Ind. 471, 31 N. E. 190, 16 L. R. A. 108; Hanly v. Sims (1911), 175 Ind. 345, 93 N. E. 228, 94 N. E. 401; State ex rel. Black v. Burch (1948), 226 Ind. 445, 80 N. E. 2d 294, 81 N. E. 2d 850; Schisler v. Merchants Trust Co. (1950), 228 Ind. 594, 599, 94 N. E. 2d 665, supra.

It then follows that the Superior Court of Vanderburgh County is without jurisdiction to determine the questions presented by causes number B-9429 and number B-9430 filed therein.

This court has power, by writ of mandate and prohibition, to confine an inferior court within its lawful jurisdiction. Section 3-2201, Burns’ 1946 Replacement; State ex rel. Acker v. Reeves (1951), 229 Ind. 126, 95 N. E. 2d 838, 839; State ex rel. Beaman v. Circuit Court of Pike County (1951), 229 Ind. 190, 96 N. E. 2d 671.

The temporary writs of prohibition heretofore issued herein are hereby made permanent, and the alternative writs of mandate heretofore issued herein are made absolute, and respondent John D. Rawlings as Judge of the Superior Court of Vanderburgh County, Indiana, is ordered to' vacate and set aside all orders made in cause number B-9429 thereof entitled: JAMES PAYNE, as President and Representative of Local 813, United Electrical, Radio & Machine Workers of America vs. Evansville City Coach Lines, Inc., a corporation, Hugh W. Abbett, Lawrence W. Cannon and Crawford Parker, as members of and constituting the Public Service Commission of Indiana, and the PUBLIC SERVICE COMMISSION OF INDIANA; and cause number B-9430 thereof entitled: CHARLES TINSLEY, as President and Representative of the Evansville Industrial Union Council, Congress of Industrial Organizations, WALTER HAYDEN, as Secretary and Representative of the Evansville Industrial Union Council, Congress of Industrial Organizations vs. EVANSVILLE CITY COACH LINES, INC., a corporation, PUBLIC SERVICE COMMISSION OF INDIANA, HUGH W. ABBETT, LAWRENCE W. CANNON AND CRAWFORD PARKER, as members of and constituting the Public Service Commission of Indiana.

Emmert, J., dissenting.