Twin City Realty Corp. v. Clay Utilities, Inc.

257 N.E.2d 686, 146 Ind. App. 629, 1970 Ind. App. LEXIS 467
CourtIndiana Court of Appeals
DecidedApril 27, 1970
Docket569A91
StatusPublished
Cited by11 cases

This text of 257 N.E.2d 686 (Twin City Realty Corp. v. Clay Utilities, Inc.) 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
Twin City Realty Corp. v. Clay Utilities, Inc., 257 N.E.2d 686, 146 Ind. App. 629, 1970 Ind. App. LEXIS 467 (Ind. Ct. App. 1970).

Opinions

Lowdermilk, C.J.

These proceedings were initiated by Clay Utilities, Inc.’s filing of a petition with the Public Service Commission for recertification as both a rural water and rural sewage utility as a result of the Combined Sewage Disposal and Water Act of 1963 (Burns’ Ind. Stat. §§ 55-4601-4615, inclusive) being declared unconstitutional by this court in City of Ft. Wayne, et al. v. Maplewood Park Utilities, Inc., et al. (1968), 143 Ind. App, 507, 241 N. E. 2d 805, transfer denied. Appellants filed a petition to intervene as interested [631]*631parties and asked for emergency relief in the form of a reduction of certain “hook-on” charges pending final adjudication that such charges were reasonable or unreasonable under the circumstances. As an alternative, to protect all parties, appellants prayed that if the utility were allowed to continue the collection of these charges ($300.00 per residential unit) that it be required to post a 'bond to assure a refund (bond premium to be paid by appellants) if the charges were finally found unreasonable. Since the Public Service Commission can neither enter a retroactive order, nor award damages, appellants argued their request for emergency relief was their only available means of recourse.

The issue determined by the Public Service Commission, from which appeal was sought, is whether or not the appellants were entitled to the emergency relief sought in their intervening petition.

Appellee utility sought by its petition recertification as a separate rural water and rural sewage utility, approval of and ratification of its present rates, rules, contracts and financing. Appellants, as intervenors, did not challenge the utility’s request for recertification; but did challenge its rates, rules, contracts, et cetera, and specifically sought emergency relief of the utility’s $300' per residential unit hook-on charge.

On May 8, 1969, after a hearing before an examiner, a ruling was handed down on appellants’ request for emergency relief, and a pre-hearing conference was set for June 26, 1969, and the Commission agreed to a presentment by the utility in order for it to be recertified so as to continue operation with a full rate hearing to be held after pre-hearing conference.

At the hearing held on May 8, 1969, appellants introduced evidence to justify their intervention and the emergency relief requested.

After the hearing a single member of the Commission entered the following record:

“I hereby, considering the additional evidence you have put in the record, overrule your emergency relief requested.”

[632]*632This ruling was appealed to the full Commission, which, by unanimous vote, sustained the examiner’s ruling denying emergency relief to the appellants.

On the above facts and record this appeal was timely perfected to this court.

Thereafter, appellee, Public Service Commission of Indiana, filed its motion to dismiss as party appellee, which motion was sustained by this court on, August 8, 1969, and the action was, at that time, dismissed as to the Commission.

The appellee, Clay Utilities, Inc., timely filed its motion to dismiss, which motion reads as follows:

“Clay Utilities, Inc., named as one of the Appellees in the above-entitled matter moves that this attempted review of an order of the Public Service Commission of Indiana be dismissed, and respectfully shows the Court:
“1. Appellants’ transcript and assignment of errors were filed in this Court on June 26,1969, and therefore this Court has jurisdiction to rule upon this motion.
“2. That this Court has no jurisdiction of the subject-matter of this attempted review, and therefore has no jurisdiction except to dismiss the same, all as hereinafter set forth.
“3. As shown by the transcript and assignment of errors and Appellants’ brief, this is an attempted review of an interlocutory order entered by the Public Service Commission of Indiana. By such interlocutory order the Commission denied a request of Appellants that certain charges be reduced pending a final adjudication as to whether they are reasonable or, in the alternative, that this Appellee post a bond to refund charges paid prior to- final adjudication if they were finally found unreasonable.
“4. There is no statutory authority granting a right to judicial review of such interlocutory orders; the only right of review being as to final decisions, rulings or orders.
“WHEREFORE, said Appellee respectfully prays that this attempted appeal or review be dismissed.”

Appellee, Clay Utilities, contends the ruling of the Commission, supra, is an interlocutory order from which no appeal will lie because the statute does not expressly provide therefor. Appellee further contends that not every order and ruling of [633]*633the Commission is subject to judicial review, but only final orders, rulings and decisions.

Appellee, Clay Utilities, Inc., further contends that should the law be held to be otherwise, then there could be an unlimited number of appeals in each and every case before the Commission; the Commission would be rendered almost helpless, and, in effect, this court would be substituted for the Commission.

The case of American Vitrified Products Co. v. Public Service Comm. (1961), 131 Ind. App. 378, 176 N. E. 2d 145, is in point on this question. In this case the court said:

“An ‘appeal’ from an order of the Commission differs from an appeal of a final judgment in civil or criminal cases. The Commission’s order establishing rates was not a judgment, but an administrative order, and the cases relative to judgments of courts are not applicable. Public Service Commission v. Cleveland, etc. R. Co. (1919), 188 Ind. 197, 121 N. E. 116. Although it may be termed an ‘appeal,’ this expression has been construed to mean ‘judicial review’ to determine whether the administrative tribunal, in this case the Public Service Commission of Indiana, has acted within the scope of its powers. Warren v. Indiana Telephone Co. (1940), 217 Ind. 93, 26 N. E. 2d 399; Public Service Comm, et al. v. City of Indianapolis (1956), 235 Ind. 70, 84, 131 N. E. 2d 308; 1 West’s Indiana Law Encyclopedia, Administrative Law and Procedure, ch, 3, § 62, p. 191. The distinction is important in that it points out the difference between the final judgment of a trial court and the final order of an administrative tribunal. The former is much more strictly construed than the latter.
“Although the Commission’s order of May 2, 1958, is designated as an ‘interlocutory order,’ such designation is not conclusive. We must look to the substance of the order, and not its form, to determine its finality. If an order of the Commission constitutes an unequivocal assertion of power of its jurisdiction and authority over a party before it, so that there is an initial and integral step of a regulatory scheme, and if a party is adversely affected by the order, and the verbiage is such that it can only be construed as a final declaration of the Commission, it will be sufficient to present to this court jurisdiction under § 54-443, Burns’ Ind. Stat., 1951 Replacement (Supp.) supra; Boone Co. [634]*634R.E.M.C. et al. v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Monk v. Peabody Coal Co.
530 N.E.2d 761 (Indiana Court of Appeals, 1988)
City of Richmond v. Public Service Commission
406 N.E.2d 1269 (Indiana Court of Appeals, 1980)
Indiana Forge & MacHine Co. v. Northern Indiana Public Service Co.
396 N.E.2d 910 (Indiana Court of Appeals, 1979)
Citizens Energy Coalition, Inc. v. Indiana & Michigan Electric Co.
396 N.E.2d 441 (Indiana Court of Appeals, 1979)
Indiana Telephone Corp. v. Indiana Bell Telephone Co.
358 N.E.2d 218 (Indiana Court of Appeals, 1976)
Charlie Stuart Oldsmobile, Inc. v. Smith
357 N.E.2d 247 (Indiana Court of Appeals, 1976)
Indianapolis Saenger Chor, Inc. v. American Fletcher National Bank
274 N.E.2d 728 (Indiana Court of Appeals, 1971)
Twin City Realty Corp. v. Clay Utilities, Inc.
257 N.E.2d 686 (Indiana Court of Appeals, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
257 N.E.2d 686, 146 Ind. App. 629, 1970 Ind. App. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/twin-city-realty-corp-v-clay-utilities-inc-indctapp-1970.