Gas Co. v. Pub. Util. Comm

Full title: THE NORTHWESTERN OHIO NATURAL GAS Co., APPELLANT v. PUBLIC UTILITIES…

Court: Supreme Court of Ohio

Date published: Feb 23, 1939

19 N.E.2d 648 (Ohio 1939)

19 N.E.2d 648

Opinion

No. 27277

Decided February 23, 1939.

Public Utilities Commission — Application to modify gas rate and appeal from rate-fixing ordinance — Commission to dismiss application and proceed under appeal.

When a public utility files with the Public Utilities Commission an application for modification of gas rates and also an appeal from a rate-fixing ordinance, the commission is required to dismiss the application and proceed under the appeal. ( City of Norwalk v. Public Utilities Commission, 133 Ohio St. 335, approved and followed.)

APPEAL from the Public Utilities Commission.

Under the provisions of Section 614-20, General Code, the appellant, The Northwestern Ohio Natural Gas Company, on July 20, 1935, filed an application before the Public Utilities Commission for an increase and modification of natural gas rates in the city of Toledo, Ohio.

While this application was pending the council of the city of Toledo on February 8, 1937, enacted an ordinance fixing the rates for natural gas in that municipality for a period of two years beginning August 3, 1937. From this action of the city council The Northwestern Ohio Natural Gas Company perfected an appeal to the Public Utilities Commission.

Thereafter while both the application and the appeal were still pending the city of Toledo filed a motion to dismiss the application on the ground that the commission had been divested of jurisdiction with respect thereto. This motion was granted on the authority of City of Norwalk v. Public Utilities Commission, 133 Ohio St. 335, 13 N.E.2d 721.

Messrs. McMahon Hayward, Messrs. Tyler, Wilson Rhinefort and Messrs. Eagleson Laylin, for appellant.

Mr. Herbert S. Duffy and Mr. Thomas J. Herbert, attorneys general, Mr. Willis W. Metcalf and Mr. Kenneth L. Sater, for appellee, the Public Utilities Commission.

Mr. Martin S. Dodd, director of law, Mr. John W. Bricker and Mr. Donald C. Power, for appellee, the City of Toledo.

WEYGANDT, C.J.

The single question here presented is whether the principle announced by this court in the syllabus in the Norwalk case, supra, is decisive of the instant controversy. This pronouncement reads as follows:

"Under the provisions of Sections 614-44, 3644, 3982 and 3983, General Code, a municipality has the power to enact an ordinance to fix rates for gas even after a public utility has filed an application to increase its rates under the provisions of Section 614-20, General Code."

The appellant contends that the foregoing rule permits the commission to elect whether it will proceed under the application or under the appeal. With this theory in mind the appellant insists that the facts in the Norwalk case, supra, are distinguishable from those in the instant one, and that in the former case this court simply required the commission to proceed under the appeal because of the circumstances peculiar to that situation.

The difficulty with the appellant's theory is that in the opinion in the Norwalk case, supra, the court indicated its rationale in the following language:

"These powers of the municipality are subject only to review by appeal to the Public Utilities Commission in event the company does not accept the ordinance, and by the right of referendum existing in the people."

This statement was based upon the statutes and upon. Sections 3, 4 and 5 of Article XVIII of the Constitution of Ohio which confer upon municipalities a constitutional grant of broad powers with reference to public utilities. Then too, the court had in mind the fact that the statutes themselves disclose no legislative intent to deny rate-fixing powers to municipalities. Section 614-44, General Code, provides that a municipality may fix rates "at any time" within one year before the expiration of any contract, and also "at any other time authorized by law." Likewise, Section 3982, General Code, specifically authorizes a municipality to regulate "from time to time" the price which such companies may charge. Therefore the ordinance took precedence, and the commission had no alternative but to proceed under the appeal rather than under the application.

The order of the Public Utilities Commission dismissing the application of the appellant for want of jurisdiction must be affirmed.

Order affirmed.

DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.