Opinion
No. 31233
Decided January 28, 1948.
Public Utilities Commission — Appeal to Supreme Court — Section 544, General Code — Final order — Emergency order temporarily altering or amending public utility service rates — Section 614-32, General Code — Mandamus — Writ not available to require commission to vacate or expunge order.
An order of the Public Utilities Commission temporarily altering or amending rates, made under favor of Section 614-32, General Code, authorizing such an order in case of emergency, is a final order appealable to the Supreme Court under Section 544, General Code, and mandamus will not lie to require the commission to vacate or expunge from its files such order, even, though it may be unreasonable or unlawful.
IN MANDAMUS.
This action is in this court on the petition of the relator for a writ of mandamus and a demurrer to the petition by the respondents.
The petition alleges in substance:
On October 29, 1941, the city council of Cincinnati, pursuant to the provisions of Sections 3982, 3983 and 614-44, General Code, passed ordinance No. 404-1941, regulating prices to be charged by the Cincinnati Gas Electric Company for gas furnished to consumers in the city of Cincinnati, which ordinance was accepted by the company to remain in force until May 31, 1944.
On May 31, 1944, council passed an emergency ordinance fixing the same rates, terms and conditions for the sale of gas to remain in force until June 30, 1944, which ordinance was also accepted by the company. On May 31, 1944, council passed another ordinance specifying the rates to be charged by the company for gas furnished consumers in Cincinnati for the period beginning June 30, 1944, and ending July 1, 1946. Within 60 days after the passage of the last-named ordinance, the company, under the provisions of Section 614-44, General Code, filed a complaint and appeal with the Public Utilities Commission of Ohio, and, pursuant to Section 614-45, General Code, elected to charge the gas rates in force and effect immediately prior to the taking effect of the ordinance complained of and appealed from, giving an undertaking conditioned to refund to its consumers the amount collected, if any, in excess of the amount which should finally be determined the company was authorized to collect from such consumers.
On May 29, 1946, council passed another ordinance regulating the price to be charged by the company for mixed gas furnished consumers in Cincinnati for the period between June 30, 1946, and July 1, 1948, from which ordinance the company filed with the Public Utilities Commission a complaint and appeal and elected to charge the rates in force immediately prior to taking effect of the last-described ordinance and gave an undertaking as required under such appeal.
On May 9, 1947, the Public Utilities Commission made an order consolidating the two appeals, and since that time the commission has continued to hear the appeals intermittently up to the present time. On October 20, 1947, the commission arbitrarily and in disregard of its lawful duties and specifically in disregard of the provisions of Section 614-47, General Code, set aside the former orders of the commission as to rates to be collected by the company during the pendency of its appeals, and in place thereof substituted an emergency order fixing different interim rates and charges from those in effect in accordance with its former orders and in accordance with the elections and undertakings of the company.
The petition alleges further that, if the interim order of October 20, 1947, is permitted to stand, the company will immediately begin to charge and collect from the consumers of gas within the city of Cincinnati amounts in excess of those, permitted, as hereinbefore set forth; that the law specifically enjoins on the commission the duty of correcting its records and of expunging therefrom its order of October 20, 1947; and that the relator has no adequate remedy at law.
The prayer of the petition is to require the respondents, as members of the commission, to set aside and expunge from the records the order dated October 20, 1947, prescribing interim emergency rates as above described.
Mr. Henry M. Bruestle, city solicitor, Mr. Ed F. Alexander, Mr. Robert J. White and Mr. Robert E. Steman, for relator. Mr. Hugh S. Jenkins, attorney general, and Mr. Harry G. Fitzgerald, Jr., for respondents.
The question here made is whether, under the facts alleged in the petition, there is a clear legal duty imposed upon the Public Utilities Commission to set aside and expunge from its files the emergency rate order fixing interim gas rates for the city of Cincinnati pending appeals by The Cincinnati Gas Electric Company from ordinances fixing gas rates in that city.
It is clear that mandamus will not lie to set aside or expunge an order of the commission unless the law specifically enjoins such action, cannot be invoked to control the discretion of the commission, and will not issue in any case where there is a plain adequate remedy in the ordinary course of the law. Sections 12283, 12285 and 12287, General Code. State, ex rel. Kauffman, v. Industrial Commission, 121 Ohio St. 472, 169 N.E. 572; State, ex rel. Toledo Theatres Realty Co., v. Fulton, Supt. of Banks, 124 Ohio St. 360, 362, 178 N.E. 585; State, ex rel. Logan Gas Co., v. Public Utilities Commission, 114 Ohio St. 655, 151 N.E. 749; State, ex rel. Stanley, v. Cook, Supt. of Banks, 146 Ohio St. 348, 66 N.E.2d 207, and cases therein cited.
The petition does not set out facts showing the occasion or circumstances under which the order of the commission was made, or even a copy of the order itself. For all that appears in the petition, the commission may have acted under powers granted it under Section 614-32, General Code, which reads as follows:
"The commission shall have power, when deemed by it necessary to prevent injury to the business or interests of the public or any public utility of this state in case of any emergency to be judged by the commission, to temporarily alter, amend, or with the consent of the public utility concerned suspend any existing rates, schedules or order relating to or affecting any public utility or part of any public utility in this state. Such rates so made by the commission shall apply to one or more of the public utilities in this state, or to any portion thereof as may be directed by the commission, and shall take effect at such time and remain in force for such length of time as may be prescribed by the commission."
This court has heretofore, on several occasions, had the scope and purpose of that section of the General Code under consideration.
In the case of City of Akron v. Public Utilities Commission, 126 Ohio St. 333, 336, 185 N.E. 415, this court made the following observation:
"The city of Akron claims that the Public Utilities Commission has jurisdiction to grant this change in rate by virtue of Section 614-32, General Code * * *.
"This is a direct grant of power and there is little quest ion concerning the clarity and emphasis of this section. It will be conceded that the Public Utilities Commission ordinarily has the power, on proper hearing, to increase or reduce a rate in case of emergency * * *."
In the absence of allegations of fact in the petition showing that the commission acted under such circumstances as made its order illegal and unlawful, the petition, pleading only conclusions of law, was clearly demurrable on that ground.
In the opinion of this court the order of the commission was a final order affecting a substantial right, even though it be designated or described as an emergency or interim order. Since it was a final order, a remedy in due course of law is provided by Section 544, General Code, which reads 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 commission, being authorized to make an interim order providing for emergency rates under certain circumstances, the order in the instant case may be reviewed on appeal. Mandamus will not lie. The demurrer to relator's petition is sustained and the writ denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS and ZIMMERMAN, JJ., concur.
TURNER, SOHNGEN and STEWART, JJ., not participating.