Opinion
No. 27103
Decided July 6, 1938.
Mandamus — Writ not substitute for appeal — Public Utilities Commission — Order settling or compromising telephone rate proceeding — Right of alleged subscribers to intervene as parties before commission.
IN MANDAMUS.
Relators allege in their petition that they have been subscribers to the telephone service of The Ohio Bell Telephone Company since January 1, 1925; that, in cause No. 3307 on the records of the Public Utilities Commission, the commission ordered The Ohio Bell Telephone Company to refund to the subscribers in the state a sum exceeding $11,000,000; and that although this order was affirmed by this court it was reversed by the Supreme Court of the United States. It is alleged that the mandate of this court ordered the proceedings remanded "for further proceedings not inconsistent with the opinion of the Supreme Court of the United States."
The petition then alleges that the commission refused to follow the mandate, but proceeded to permit the Attorney General and representatives of The Ohio Bell Telephone Company to enter into negotiations for a settlement. It is alleged that on April 26, 1938, the Attorney General and counsel for The Ohio Bell Telephone Company made certain recommendations for settlement which were adopted by the commission in a final order.
Relators allege that the Public Utilities Commission has "no authority under the laws of the state of Ohio, nor any of the statutes contained therein, to make findings and orders, concerning the justice, reasonableness or excessiveness of said increased charges, rates, tolls and rentals by adopting a settlement or a compromise agreed upon between the Attorney General and the company."
In their prayer for relief relators seek to have the order of April 26, 1938, set aside and the commission commanded to re-open the case and to proceed therein to determine "the justice, reasonablenes or excessiveness" of the rates according to law.
A motion to dismiss the petition was filed on behalf of the Public Utilities Commission. It was agreed that the matter should be disposed of upon the allegations in the petition and a copy of the order of the Public Utilities Commission of April 26, 1938.
Mr. Martin A. McCormack and Messrs. Horwitz, Kiefer Harmel, for relator.
Mr. Herbert S. Duffy, attorney general, and Mr. W.W. Metcalf, for respondent.
The order of the Public Utilities Commission of April 26, 1938, consists of 21 printed pages with numerous exhibits attached showing valuations fixed. On its face it is no different in form from any other order of the commission in a rate case. From an examination of it alone, the commission had the jurisdiction to enter it. It would be subject to attack only upon rehearing or on appeal, and not in an action in mandamus.
The last paragraph of Rule 2 of the Public Utilities Commission provides:
"Any person, public utility or railroad may petition in a proceeding for leave to intervene and be heard therein. Such petition shall set forth petitioner's interest in the proceeding. Leave granted on such application shall entitle intervener to appear as a party to the proceedings, file an answer, or other pleading, have notice of hearing, produce and cross-examine witnesses, and be heard in person or by counsel."
A remedy is therefore provided under the rules of the commission. Mandamus cannot be substituted for appeal. State, ex rel. Ohio Electric Ry. Co., v. Public Utilities Commission, 101 Ohio St. 313, 128 N.E. 83; State, ex rel. Logan Gas Co., v. Public Utilities Commission, 114 Ohio St. 665, 151 N.E. 749. Neither can mandamus be employed to defeat the right of the Public Utilities Commission to determine whether relators are proper parties.
The motion to dismiss the petition of the relators is therefore sustained and the petition is dismissed.
Petition dismissed.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, WILLIAMS, MYERS and GORMAN, JJ., concur.