Opinion
Nos. 37128 and 37129
Decided June 27, 1962.
Public Utilities Commission — Tendered regulation by public utility — Whether increase in rates for utility service — Question of fact — Determinable, in first instance, along with jurisdiction, by commission.
IN MANDAMUS.
IN PROHIBITION.
The matters which gave rise to the controversy in these two cases began before the Public Utilities Commission when the relator, hereinafter called the company, filed an application for an order fixing the time for taking effect of a certain new regulation pertaining to the resale of electric energy by the relator, stating in such application that it is not one for an increase in any rate or charge.
The commission ordered that the application be set for hearing, thus refusing, over the company's objection, to permit the filing of the company's new regulation until it, the commission, had first determined the regulation to be reasonable and proper upon the basis of evidence adduced by the company.
Thereafter, the commission, over the objection of the company, permitted the intervention in the proceeding before the commission of the Shopping Centers Association of Northern Ohio, hereinafter called the association. At the hearing, after a company witness had been examined by the company and cross-examined by the commission, the association was granted a continuance to prepare for the cross-examination of the company witness. The order granting such continuance permitted the association to take the deposition of the company witness. The witness, however, later refused to appear and testify by way of deposition.
Thereafter, these two cases were instituted.
In the mandamus action (No. 37128), the company seeks a writ requiring the commission to accept for filing the company's regulation tendered in the proceeding pending before the commission and to fix the effective date thereof.
In the prohibition action (No. 37129), the company seeks a writ to prohibit the commission from ordering the deposition of the company witness and from proceeding with any hearing as to the reasonableness of the regulation filed by the company.
The court has considered the mandamus case on two prior occasions. After the company had filed a motion in this court for summary judgment, the court heard arguments on the availability of the summary-judgment remedy in a mandamus case. The court decided that such a remedy was available in a mandamus case.
Later the court heard arguments on the motion to grant a summary judgment in favor of the company and overruled the motion. Although the entry thereon merely overruled the motion, the opinion of the court at that time was that there was a genuine issue of fact as to whether the regulation sought to be filed by the company actually established a change in rates for electrical energy, and that, therefore, the motion should not be sustained.
After the denial of summary judgment, the company, in each action, filed a motion for the appointment of a special master commissioner to take testimony on the issue of fact. The intervenors filed a motion to dismiss the mandamus action, for the reason that such action had been submitted to the court on its merits (on the motion for summary judgment), and that the case had been finally concluded by the order of the court overruling the motion for summary judgment.
The cases are presently considered by the court on these motions.
Mr. Lee C. Howley, Mr. Harry G. Fitzgerald, Jr., Messrs. Squire, Sanders Dempsey, Mr. John Lansdale, Jr., and Mr. George I. Meisel, for relator.
Mr. Mark McElroy, attorney general, Mr. Herbert T. Maher and Mr. Andrew R. Sarisky, for respondent Public Utilities Commission.
Messrs. Metzenbaum, Gaines, Schwartz, Krupansky, Finley Stern, for respondent Shopping Centers Association of Northern Ohio.
Although the members of the court are not agreed as to whether the tendered regulation sought to be filed constitutes an increase in rates for electrical energy, there is no disagreement among the members of the court about its raising a question of fact.
The major area of disagreement among the members of the court concerns the tribunal in which that question of fact should be determined. Jurisdiction over matters pertaining to utility rates is, by statute, specifically reposed in the Public Utilities Commission. It is the opinion of the majority of the court that the commission should be allowed, in the first instance, to determine its own jurisdiction and questions of fact arising thereunder. The rights of all interested parties are amply protected by the remedy of appeal from an adverse ruling of the commission.
Therefore, the motions for the appointment of a special master commissioner are overruled, the motion to dismiss the mandamus action is sustained, and such action is dismissed.
Since the commission has jurisdiction over the controversy raised by the company's application, the court, sua sponte, dismisses the prohibition action.
Cases dismissed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, KERNS and O'NEILL, JJ., concur.
KERNS, J., of the Second Appellate District, sitting by designation in the place and stead of HERBERT, J.