Summary
In Ashtabula v. Pub. Util. Comm. (1942), 139 Ohio St. 213, 22 O.O. 211, 39 N.E.2d 144, we held that the commission's refusal to dismiss a proceeding on jurisdictional grounds did not affect a substantial right of the appellant, because the city could appeal such issue to the court after the commission had issued its final order on the merits.
Summary of this case from Cincinnati v. Pub. Util. CommOpinion
No. 28763
Decided January 21, 1942.
Appeal — Public Utilities Commission to Supreme Court — No final order — Sections 544 and 12223-2, General Code — Overruling motion to dismiss appeal from municipal rate ordinance.
An order of the Public Utilities Commission, overruling a motion of a municipality to dismiss an appeal from a rate ordinance of such municipality on the ground that the commission has no jurisdiction to hear such appeal, is not a final order within the contemplation of Section 544, General Code, from which an appeal may be taken.
APPEAL from the Public Utilities Commission.
For some time prior to September 24, 1934, The Ashtabula Water Works Company served water to the city of Ashtabula and its inhabitants. On that date the city enacted an ordinance granting the company a twenty-year franchise to distribute and sell water within the city and establishing the rates for such service for the first five years of such period, which ordinance was duly accepted by the company in writing. The ordinance contained also the following provision:
"At the expiration of five (5) years from the effective date of this ordinance, if the city has not purchased, leased, or appropriated the said waterworks aforesaid, the council may from time to time during the remainder of said term of twenty (20) years refix the reasonable maximum rates that shall not be exceeded by said company in its charges for water which it shall furnish the city for public purposes and to the inhabitants of said city for domestic and manufacturing purposes."
On November 6, 1939, the city enacted a new rate ordinance which established the rates which the company would be permitted to charge for water service during the five-year period immediately ensuing. The company, claiming that these rates were inadequate and unreasonable, appealed from this rate ordinance to the Public Utilities Commission requesting it to determine reasonable rates and to substitute them for those fixed by the ordinance. The city moved to dismiss the appeal, claiming the commission had no jurisdiction to hear it on the theory that the company, by accepting the original franchise and rate ordinance, had specifically waived its right to appeal to the commission from any rate ordinance which the city might adopt for and during the remainder of the unexpired term of the franchise.
The commission overruled the motion, holding it had jurisdiction to entertain the appeal, whereupon the city perfected an appeal to this court. The commission has filed a motion to dismiss the appeal of the city on the ground that the order made by the commission, overruling the motion of the city to dismiss the appeal of the company from the rate ordinance, was not a final order from which an appeal could be taken.
The only matter to be passed upon is the motion of the commission to dismiss the appeal of the city now pending in this court.
Mr. Tom R. Bailey, city solicitor, and Mr. Robert L. Barton, for appellant.
Mr. Thomas J. Herbert, attorney general, and Mr. Kenneth L. Sater, for appellee.
The jurisdiction of this court to hear an appeal from the Public Utilities Commission is based upon Section 544, General Code, which is as follows:
"A final order made by the commission shall be reversed, vacated or modified by the Supreme Court on appeal, if upon consideration of the record such court is of the opinion that such order was unlawful or unreasonable."
The question raised by the motion to dismiss the appeal of the city to this court is whether the order of the commission overruling the motion of the city to dismiss the proceedings before it, is a "final order." It is conceded that if the commission had granted the motion to dismiss the appeal of the company to the commission, there would have been a final order, because that would have ended the matter and would have denied the company the right of appeal. Is the order of the commission refusing to dismiss the appeal of the company a final order from which the city may appeal? In the opinion of the court it is not. It does not finally dispose of the appeal pending before the commission and does not affect a substantial right. Section 12223-2, General Code. A final order under Section 544, General Code, has been held by this court to be the same type of order referred to and defined in other sections of the Code. City of Dayton v. Public Utilities Commission, 111 Ohio St. 476, 481, 145 N.E. 849.
To recognize the claim of the city would be to permit an appeal on only one feature of the controversy — a split appeal — which, if authorized, would prolong and confuse litigation. The commission may find the ordinance rate just and reasonable, in which event no appeal on the part of the city may be necessary. If the city is obliged to appeal after a final determination of the rate by the commission, the question now sought to be raised may be litigated in this court.
Furthermore, since the city claims the commission has no jurisdiction to hear the appeal on the rate ordinance because of a private contract between the city and the company, a collateral issue in the proceeding, this court may not be able to determine whether the commission has jurisdiction to hear the appeal before it until the matter is tried on its merits and the record fully made up.
A question of procedure similar, if not identical, to that presented in this case, was before this court in the case of the City of Cleveland v. Public Utilities Commission, 136 Ohio St. 410, 26 N.E.2d 213. This court there held that an order, overruling a motion of the city to dismiss an appeal before the commission on the ground that the latter had no jurisdiction of the appeal, was not a final order. This court still adheres to that position, and the motion of the commission to dismiss the appeal in this case must be sustained.
Appeal dismissed.
WEYGANDT, C.J., WILLIAMS, MATTHIAS, ZIMMERMAN and BETTMAN, JJ., concur.
TURNER, J., dissents.