State ex rel. Public Service Commission v. Marion Circuit Court

Bobbitt, J. This action arises under the Acts of 1929, ch. 169, §1, p. 530, being §54-429) Burns’ 1951 Replacement. On November 21, 1950, the Indiana Bell Telephone Company filed its petition with the Public Service Commission of Indiana requesting an increase in rates, tolls and charges intrastate and for certain increases in charges for its exchange services. Said petition was properly docketed by said commission and after various hearings thereon the commission, on May 31, 1951, issued and promulgated its final order therein prescribing a new schedule of rates and charges for said company. On June 15, 1951 said company filed its action in the Marion Circuit Court under the provisions of §54-429, Burns’ 1951 Replacement, supra, to set aside and vacate said order, on the ground that it was insufficient, unreasonable and unlawful, and was procured by unlawful means, and as ancillary thereto, requested a temporary injunction to enjoin the Public Service Commission from interfering, or attempting to interfere, with the charging and collecting of a temporary schedule of rates as proposed in the complaint, until the final determination by the Public Service Commission of reasonable, adequate and nonconfiscatory rates to be charged by the company, and upon final hearing, that said order be vacated and set aside and that the commission be permanently enjoined from its enforcement. — 282 — After hearing on the company’s petition for temporary injunction the Marion Circuit Court, on June 28, 1951, entered its order therein which, omitting caption and signatures, is as follows: “TEMPORARY INJUNCTION. “Come the parties herein by counsel and, this cause having been submitted upon plaintiff’s application for a temporary injunction at the time and place fixed therefor and the court having heard the evidence and the arguments of counsel and being duly and fully advised in the premises, it is now “ORDERED that the plaintiff shall file with the Public Service Commission of Indiana the schedules of local exchange rates for plaintiff’s services within the State of Indiana set out in the complaint ; and it is further “ORDERED that the plaintiff may make said schedule of local exchange rates effective as of plaintiff’s regular billing dates as they shall occur next after said filing; and it is further “ORDERED that plaintiff may charge and collect the rates included in said schedule from and after the filing and effective date aforesaid and until the further order of the court herein; and it is further “ORDERED that the defendants be and they are hereby enjoined and restrained from interfering or attempting to interfere with the charging and collecting by plaintiff of the rates for its services included in said schedules until the further order of the court herein; and it is further “ORDERED that the plaintiff shall enter into a written undertaking, with surety to be approved by the court, to the defendants for the payment of all damages and costs which may accrue by reason of this injunction; and it is further “ORDERED that if the order of the defendant commission herein involved shall not be vacated or set aside or the enforcement thereof enjoined upon the trial herein or upon the determination of any — 283 — appeal which may be taken from the judgment entered upon said trial, the plaintiff shall make refund to its subscribers as follows: “a. To each subscriber paying for local exchange service at the rate therefor specified in said schedule of local exchange rates, the refund shall be equal to 86.5% of the difference between the amount so paid and the amount which would have been payable for the same service at the rate ■therefor specified in plaintiff’s local exchange tariff in effect immediately prior to the date hereof. . “b. To any person who may become entitled to a refund hereunder who shall then be a subscriber of the plaintiff, such refund shall be made by crediting the amount thereof to such subscriber upon plaintiff’s next billing for service; provided, however, that upon the request of such subscriber the amount of said refund shall be paid in money; and it is further “ORDERED that plaintiff shall enter into a written undertaking, with surety to be approved by the court, for the making of all refunds which may be required under the foregoing provisions.” The Public Service Commission of Indiana then filed its complaint in this court for writ of prohibition and mandate asking that the Marion Circuit’ Court and the Judge thereof be mandated to withdraw and set aside said ,order of temporary injunction, and that it be prohibited from any further proceedings therein. Respondents herein filed an answer and response and a brief in support thereof. We have, however, not been favored with a brief by relator or by anyone in its behalf. ■ While other questions are presented by respondents’ •brief only three need be considered in determining ■this action. They are: ■ First: Did the Marion Circuit Court have jurisdiction of the subject matter and of the parties? — 284 — Jurisdiction is the right, authority and power to hear and determine a cause of action. Lantz v. Maffett et al. (1885), 102 Ind. 23, 26 N. E. 195; Freestone v. State ex rel. Advance-Rumely Co. (1934), 98 Ind. App. 523, 176 N. E. 877; 50 C. J. S., Jurisdiction, pp. 1089 to 1092; 14 Am. Jur., Courts, §160, p. 363. This action was commenced in the Marion Circuit Court to vacate, set aside and enjoin the enforcement of an order of the Public Service Commission1 on the ground that such order was insufficient, unreasonable and unlawful. Acts of 1929, ch. 169, §1 at p. 530, being §54-429, Burns’ 1951 Replacement, supra, provides: “Section 1. Be it enacted by the general assembly of the State of Indiana, That 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.” This section of the statute expressly vests jurisdiction in the Marion Circuit Court to hear and determine actions to vacate, set aside or enjoin the enforcement of any decision, ruling, order, determination, requirement or direction of the Public. Serv — 285 — ice Commission on the grounds therein set out. (§54-429, Burns’ 1951 Replacement, supra.) ■■ The complaint alleges that the order was insufficient, unreasonable and unlawful, and was procured by Unlawful means, and this is sufficient to bring the subject matter of the action within the jurisdiction of the court. Public Service Commission v. City of LaPorte (1935), 207 Ind. 462, 468, 193 N. E. 668. The Marion Circuit Court also has original jurisdiction in all cases at law and equity, except as otherwise provided by statute, Acts of 1881 (Spec. Seas.), ch. 24, §3, p: 102; §4-303, Burns’ 1946 Replacement; and the case at bar does not come within the exceptions noted. The Acts of 1899, ch. 233, §1, p. 537, being §3-2101, Burns’ 1946 Replacement gives express jurisdiction to circuit courts to issue injunctions. This court in State, ex rel. v. Gleason (1918), 187 Ind. 297, at pp. 298, 299, 119 N. E. 9, in determining the jurisdiction of the Vigo Superior Court to issue a temporary injunction construed two sections of earlier statutes containing provisions similar to §54-429, Burns’ 1951 Replacement, supra, and §4-303, Burns’ 1946 Replacement, supra, said: , . “By the act creating it the Vigo Superior Court was given general j urisdiction at law and in equity, and by §14 (Acts 1881 p. 95) of the act it was expressly given power to grant restraining orders and injunctions. It thus appears that the court had general jurisdiction of the subject-matter of the action and had power to grant injunctions in proper cases. It is not denied that the court hád obtained jurisdiction of the parties to the proceed-. ing. It has been.uniformly held that a court, which' has jurisdiction of the subject-matter of an action and which has obtained jurisdiction of the parties, has power to hear and determine such action.” — 286 — We concur in the reasoning and conclusions reached by Judge Lairy in the above quotation and they apply with equal force to the issues presented in the case at bar. The Marion Circuit Court would have the right and power to review the order of the Public Service Commission out of which this cause arises, in the absence of express statutory authority. Public Service Commission v. City of LaPorte (1935), 207 Ind. 462, 193 N. E. 668, supra; Pub. Ser. Com. v. Ind’p’ls. Railways (1947), 225 Ind. 30, 39, 72 N. E. 2d 434; State ex rel. Ind’p’ls. Ry. v. Superior Ct. (1947), 225 Ind. 301, 304, 74 N. E. 2d 912; The Lake Erie and Western R. R. Co. v. Cluggish et al. (1896), 143 Ind. 347, 42 N. E. 743; 43 Am. Jur., Public Utilities and Services, §224, p. 720. Second: Having determined that the Marion Circuit Court had jurisdiction of the subject matter and of the parties, we now consider whether or not it was within its jurisdiction in issuing a temporary injunction restraining the Public Service Commission from interfering with a rate charged pendente lite under the terms and conditions fixed in the order. Circuit and superior courts have the power to enjoin the enforcement of an order of the Public Service Commission which is insufficient, unreasonable, unlawful, or procured by fraud or other unlawful methods: §54-429, Burns’ 1951 Replacement, supra; Southern R. Co. v. Railroad Com., etc. (1908), 42 Ind. App. 90, 101, 83 N. E. 721; Public Service Commission v. City of LaPorte (1935), 207 Ind. 462, 464, 465, 193 N. E. 668, supra; Pub. Ser. Com. v. Ind’p’ls. Railways (1947), 225 Ind. 30, 40, 72 N. E. 2d 434, supra; State ex rel. Ind’p’ls. Ry. v. Superior Ct. (1947), 225 Ind. 301, 304, 74 N. E. 2d 912, supra; and — 287 — to make such further orders as they may deem necessary to preserve the solvency of the utility or carrier in status quo pending a final determination of the sufficiency, reasonableness, and validity of the rates attacked, including the issuance of a temporary injunction to prohibit the Public Service Commission from interfering with a temporary rate charged pendente lite. Pub. Ser. Com. v. Ind’p’ls. Railways (1947), 225 Ind. 30, 40, 72 N. E. 2d 434, supra; State ex rel. Ind’p’ls. Ry. v. Superior Ct. (1947), 225 Ind. 301, 304, 74 N. E. 2d 912, supra; Tuf-Tread Corp. v. Kilborn (1930), 202 Ind. 154, 157, 172 N. E. 353; State ex rel. Fry v. Superior Court of Lake County (1933), 205 Ind. 355, 186 N. E. 310; Wise v. Curdes (1942), 219 Ind. 606, 617, 40 N. E. 2d 122; Willis v. Dictograph Sales Corporation (1944), 222 Ind. 523, 54 N. E. 2d 774; High—Law of Injunctions, Fourth Edition, Vol. 2, §1308; 28 Am. Jur., Injunctions, §15, p. 208. Relator contends that the Marion Circuit Court exceeded its authority when it issued a temporary injunction against the Public Service Commission enjoining and restraining it from interfering with the charging and collecting of the rates included in the schedules submitted by the company and approved by said court, in, that by said order it undertook to fix and determine temporary rates and charges. In Pub. Ser. Com. v. Ind’p’ls. Railways (1947), 225 Ind. 30, 72 N. E. 2d 434, supra, wherein the facts were similar to those in the case at bar, this court at pp. 39 and 40 said: “Appellant insists that the order complained of amounts to a fixing of rates by the trial court. If this be true the order is invalid as the fixing of rates for a utility is not a judicial function and can only be done by the commission. As we view this order, however, the same does not attempt to — 288 — ■fix rates but merely restrains the appellant from interfering with the rate charged pendente lite on terms and conditions which protect appellant and appellee’s customers in case the final judgment -in the action should be against the appellee as this order provides for an adequate indemnifying bond. Had this order not been made and should the final judgment be in favor of the appellee, then it would suffer an irreparable injury. The granting'of this injunction was within the sound discretion of the trial court and will not be disturbed unless contrary; to some rule of equity.” This court also said in State ex rel. Ind’p’ls. Ry. v. Superior Ct. (1947), 225 Ind. 301, 74 N. E. 2d 912, supra, at page 304: “It is our opinion that when relator’s suit was commenced the Marion Circuit Court took full jurisdiction in this matter tó the exclusion of all other courts. This being true, the Marion Circuit Court not only has the power to. determine whether or not the rate schedule, which is attacked, should finally be set aside, but also, to determine the right, if any, of the relator to fix and collect pendente lite a fare different from the rate sought to be set’ aside. Our conclusion on this point would be the same even in the absence of the provision above quoted of §54-430, Burns’ 1933.” Again in Public Serv. Comm. v. Indianapolis Rys. (1948), 225 Ind. 656, 76 N. E. 2d 841, it was contended that an injunction granted by the lower court amounted to the fixing of rates and this court, at pp. 661 and 662, said: “The commission was enjoined from interfering with the emergency rates until it fixed rates that were not unreasonable or confiscatory. If the court were prohibited from granting such relief, it would mean that property could be taken without just compensation, and that there would be no relief from an order of the- commission- fixing rates ex — 289 — cepting to- enjoin its enforcement. Equity has never been that helpless. The court had the right to examine the rates fixed by the commission and to determine whether or not they were unreasonable and confiscatory. It is evident that if the court did find such rates to be confiscatory, it then could examine the higher rates, a schedule of which had been filed with the commission. If the court believed that any rates lower than the rates thus requested and refused would be unreasonable and confiscatory, it had the power to protect the property of the appellee from such dire results by enjoining the setting of any rates lower than those requested and refused.- It seems to us that there was no attempt, on the part of the court, to usurp the rights and duties of the commission. The steps taken have been used on many occasions by utilities when a utility commission failed to preserve utility property from confiscation by the making of an order fixing rates which were insufficient to protect the credit and solvency of such utility.” We think these cases correctly decided the same question which is now before us. The power to enjoin the enforcement of an unlawful, insufficient or unreasonable order of the Public Service Commission carries with it the authority to make an order permitting the charging of a schedule of rates sufficient to preserve the solvency of the utility or carrier in status quo and to prevent the confiscation of its property, pendente lite, by permitting the utility or carrier, during such time, to charge a schedule of rates which are not confiscatory. The order of which respondents complain, does no more than this. It does not attempt to fix rates, but merely permits the petitioner (company) to charge a schedule of rates pendente lite, which will permit it to operate, until a final determination of the questions raised by its petition in the trial court, without a day by day confiscation of its property and such as will — 290 — dispel the probability of incurring an irreparable injury in the event it is successful in finally establishing a higher schedule of rates. Further evidence that the purpose of said order is to maintain the status quo pendente lite, and not the fixing of rates, is the provision for a refund to the rate payers of 86.5% of the difference between the rates permitted by the order and those in effect immediately prior to the date thereof, in the event petitioner is not succesful in its action to set aside the order of the Public Service Commission. Third: Relator contends that the Marion Circuit Court exceeded its jurisdiction because the order for temporary injunction contained no finding. In considering this question it must be kept in mind that the proceeding upon which this action rests was one for the interlocutory order granting a temporary’injunction and not on the final merits of the case. The rule defining the state of facts necessary to be determined in such cases was correctly and concisely stated by this court in Tuf-Tread Corp. v. Kilborn (1930), 202 Ind. 154, 156, 172 N. E. 353, supra, as follows: “Upon an application for an interlocutory order granting an injunction, it is not necessary that such a case should be made out as would entitle the plaintiff to relief at the final hearing. It is sufficient if the court finds upon the pleadings and evidence such a state of facts as makes the transaction a proper subject for investigation in a court of equity.” See also: Weist v. Dirks (1939), 215 Ind. 568, 569, 20 N. E. 2d 969; Pub. Ser. Com. v. Ind’p’ls. Railways (1947), 225 Ind. 30, 41, 72 N. E. 2d 434, supra; 43 C. J. S., Injunctions, §200 (b), p. 924; 28 Am. Jur., Injunctions, §12, p. 204. — 291 — Because of the nature of the proceedings herein special findings even though had they been requested, were not required to be made. Starr v. Swain (1914), 182 Ind. 313, 315, 106 N. E. 357; Hutchinson v. Trauerman (1887), 112 Ind. 21, 25, 13 N. E. 412; Beckman Supply Co. v. Newell (1918), 68 Ind. App. 679, 118 N. E. 962; (Tr. denied 12-13-1918). The question of the omission of a general finding from an order can properly be raised in an original action in this court only if such omission divested the trial court of jurisdiction. If there is a defect in the order of the Marion Circuit Court because it failed to contain a finding, we believe it is a defect in form and not in substance and could, and would, have been corrected by the trial court had it been called to the attention of the judge thereof. It has long been the settled law of this state that courts of appeal will not reverse a judgment on appeal for any defect in form which, by law, might be corrected by the court below. Section 2-3231, Burns’ 1946 Replacement; Acts of 1881 (Spec. Sess.), ch. 38, §659, p. 240. The defect in the judgment here complained of, if any, is such that it might be corrected by the trial court and such as not to require a reversal by this court on appeal and, therefore, it cannot be such a defect or error as to impair or divest the trial court of jurisdiction. The Marion Circuit Court had jurisdiction of the subject matter and of the parties herein, and such jurisdiction .was not impaired or divested by the failure of the order for a temporary injunction to be preceded by a finding. — 292 — — 291 — Prohibition is an extraordinary remedy and will not issue here unless respondent court has stepped — 292 — without the bounds' of its jurisdiction. State ex rel. Emmert v. Hamilton Circuit Court (1945), 223 Ind. 418, 421, 61 N. E. 2d 182, 159 A. L. R. 1279; §3-2201, Burns’1946 Replacement. Relator has failed to show where respondent Marion Circuit Court has either exceeded or lost its. jurisdiction in this case. The temporary writ heretofore issued herein is dissolved and a permanent writ is denied. ■ • Emmert, J., dissenting. Note.—Reported in 100 N. E. 2d 888. Footnotes [1] Order of Commission in Cause No. 22632, dated May 31, 1951.