Opinion
No. 36352
Decided February 3, 1960.
Prohibition — Municipal corporations — Rate-fixing ordinance — Appeal to Public Utilities Commission — Jurisdiction to hear and determine issues presented.
IN PROHIBITION.
This proceeding was instituted in this court. The amended petition sets forth in substance the following allegations.
For many years last past, gas service has been supplied to consumers within the city, the relator herein, by The Dayton Power Light Company (the intervening respondent herein, hereinafter called the company) pursuant to a franchise agreement between relator and the company. The franchise agreement expired and relator passed an ordinance (No. 19093) granting to the company a gas franchise and providing for rates. This ordinance grants to the company, for a period of 25 years, the right to transact within the relator the business of supplying gas to it and its inhabitants at rates provided in section three thereof for all types of consumers. The ordinance requires the company to file its written acceptance thereof, and thereupon the ordinance "shall be a contract" between relator and the company, binding upon both parties. The company, by letter, advised relator that it would not accept the ordinance.
Thereafter the company filed a complaint and appeal with the Public Utilities Commission, the members of which are respondents herein, from only the residential rate provisions of ordinance No. 19093. This complaint was consolidated with a complaint filed by the company of ordinance No. 19094, an ordinance passed by relator fixing the rates that can be charged by the company for natural gas service to residential consumers only. The ordinance provides that it shall "take effect and be in force from and after the earliest period provided by law," regardless of its acceptance or rejection by the company. The ordinance is to be effective until December 31, 1960.
During the formal hearings before the commission, relator challenged its jurisdiction to hear and determine any issues presented in the complaint and appeal from ordinance No. 19093 and moved to dismiss such complaint. The motion was overruled and the commission took jurisdiction to alter or amend rates set forth in such ordinance and received evidence and testimony relative to increases in rates. The amended petition alleges that unless prohibited the commission will proceed to hear and determine all issues involving rates set forth in the rejected 25-year franchise (ordinance No. 19093); that the ordinance, specifically rejected by the company, never became effective and is null and void; and that, in the absence of a valid rate-fixing ordinance, the commission is without authority to establish rates or modify existing rates until the company complies with Sections 4909.18 and 4909.19, Revised Code.
The prayer of the amended petition is for a writ prohibiting the commission from hearing or adjudicating any issues presented in the complaint and appeal of the company from ordinance No. 19093; and that such appeal be severed from the appeal from ordinance No. 19094 and ordered dismissed.
To this amended petition all respondents filed demurrers on the ground that the petition does not state a cause of action for a writ of prohibition. The case has been presented on the amended petition and the demurrers thereto.
Mr. Herbert S. Beane, city attorney, and Mr. Robert J. White, for relator.
Mr. Mark McElroy, attorney general, Mr. Herbert T. Maher and Mr. Andrew R. Sarisky, for respondents, members of the Public Utilities Commission.
Mr. Julian de Bruyn Kops, Mr. J.R. Newlin, Messrs. Squire, Sanders Dempsey, Mr. John Lansdale and Mr. George I. Meisel, for intervening respondent, The Dayton Power Light Company.
The relator contends that ordinance No. 19093, having been rejected by the company, is null and void and without any effect for any purpose; that, therefore, the commission is without jurisdiction to hear and determine an appeal from any of its provisions; and that relator has no adequate remedy at law on appeal to this court.
This court is not in accord with those contentions. The ordinance does not provide that if it is not accepted by the company it will be void. It does provide that each section and provision is independent of every other section and provision.
The acceptance section provides:
"Within thirty (30) days from the date this ordinance takes effect, The Dayton Power Light Company shall file with the clerk of the city commission of the city its written acceptance hereof, and thereupon this ordinance shall be a contract between the city and the company * * *." (Emphasis added.)
This clearly indicates that the ordinance was intended to be in force as a rate-fixing ordinance before its acceptance by the company. Company acceptance was not a condition precedent to the taking effect of the ordinance. A municipality may pass a rate-fixing ordinance without the necessity of the utility's acceptance (Section 743.26, Revised Code).
The commission has jurisdiction of the subject matter involved in the proceeding before it, and a writ of prohibition will not lie to prohibit it from exercising its jurisdiction.
The demurrers to the amended petition are sustained, and, counsel having agreed that the decision on the demurrer shall be final, a writ of prohibition is denied.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.