Opinion
No. 40967
Decided December 27, 1967.
Appeal — From Public Utilities Commission to Supreme Court — Grounds considered by court — Only grounds specifically set forth in application for rehearing before commission — Section 4903.10, Revised Code, not complied with, when.
APPEAL from the Public Utilities Commission.
Appellants, consumers of natural gas supplied by appellee East Ohio Gas Company, applied to the Public Utilities Commission for rehearing with respect to the commission's order approving amended tariff schedules, on the following grounds:
(1) The commission's order denying rehearing referred irrelevantly to a related case; (2) the commission had not considered the subject matter of the complaint; (3) the commission had not considered the constitutionality of the company's action as it affected the customers; (4) the commission had denied its authority to pass on the constitutionality of its own acts; (5) the commission found that practices complained of had not been disapproved by this court in other cases; (6) the complaint was supported in law and fact and dismissal was unreasonable and unlawful; (7) the company's acts violated the rights of appellants under the Fourteenth Amendment to the United States Constitution; and (8) the commission had failed to determine that the acts of the company were either constitutional and valid or unconstitutional and invalid.
Appellants' brief here states five propositions of law in which the court is asked to concur:
(1) The company may charge new rates only for gas consumed after date of the commission's order; (2) where a billing period includes time both before and after the date of the commission order, the company must apportion charges for gas consumed before and after date of the order; (3) a commission order allowing the company to charge the new rates for gas consumed before the date of the order, without apportioning the charges appropriately, would violate the equal protection of the laws to which the customers of the company are entitled under the Fourteenth Amendment to the United States Constitution; (4) it is the duty of the company to interpret the commission's order in a manner which will not be in violation of the constitutional rights of customers; and (5) the company's practice of spreading its billing results in customers being charged different rates for gas consumed on the same day in violation of their right to equal protection of the laws, and the company is therefore obliged to credit all bills appropriately where a customer was charged the new rates for gas consumed before the date of the order.
Messrs. Woodle Wachtel and Mr. Edwin F. Woodle, for appellants.
Mr. William B. Saxbe, attorney general, and Mr. J. Philip Redick, for appellee the Public Utilities Commission of Ohio.
Messrs. Jones, Day, Cockley Reavis, Mr. Walter J. Milde, Mr. James E. Courtney and Mr. Thomas G. Roderick, for appellee The East Ohio Gas Company.
There is some similarity between parts of some of the grounds stated in appellants' application for rehearing before the commission and parts of some of the statements of law in appellants' brief on appeal in this court. Such a casual similarity does not, however, meet the requirements of Section 4903.10, Revised Code, which, in pertinent part, provides:
"Such application shall be in writing and shall set forth specifically the ground or grounds on which the applicant considers said order to be unreasonable or unlawful. No party shall in any court urge or rely on any ground for reversal, vacation, or modification not so set forth in said application." (Emphasis added.)
In construing Section 543, General Code, predecessor of Section 4903.10, Revised Code, the court said:
"On an appeal from an order of the Public Utilities Commission, the Supreme Court cannot consider any matter which was not specifically set forth in an application to the commission for a rehearing as a ground on which the appellant considered the order of the commission to be unreasonable or unlawful. * * *" (Emphasis added.) Cincinnati v. Public Utilities Commission (1949), 151 Ohio St. 353, paragraph 17 of the syllabus; Marion v. Public Utilities Commission (1954), 161 Ohio St. 276, 279.
In the Cincinnati case, the court, at page 378, said:
"* * * It may fairly be said that, by the language which it used, the General Assembly indicated clearly its intention to deny the right to raise a question on appeal where the appellant's application for rehearing used a shotgun instead of a rifle to hit that question."
Where, as here, it is necessary to examine minutely an appellant's complaint before the commission, the order of the commission, appellant's application for rehearing, his notice of appeal and his brief in this court merely to discover what questions he is raising on appeal which were also presented to and decided by the commission on the application for rehearing, appellant has failed to comply with the provisions of Section 4903.10, Revised Code.
The appeal is, therefore, dismissed for failure to set forth specifically the ground or grounds of appeal which were rejected by the commission when it denied the application for rehearing.
Appeal dismissed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.