*1 rеsponse offer, which it In appellant was sold. to this indicated it was “not interested.” Under the facts thus presented, reasonably the trial court could and evident ly appellant given did conclude that had in fact been right accept party “the first the offer of the part” provided lease, first in the had not that, accepted therefore, there was no breach with regard agreement particular to this of the lease.
Petition to transfer is therefore denied.
Bobbitt, J., Arterburn, Emmert, Landis, JJ., C. con- cur. Reported in 131 N. 2dE.
Note. — Indiana, Public al., Service Commission et Indianapolis v. Water
Indianapolis 29,266. January 11, Filed [No. 1956.] *5 Wright, General, D. Steers, Attorney J. Edwin K. appellants Service General, Public Deputy Attorney for and its members. Commission Wooling, Redding, L.
Joseph Daniels, R. John J. G. counsel, Indianapolis, Daniels, all & Baker Company. Indianapolis appellant for Water Counsel, George R. Ward, Corporation Palmer K. appellee, Indianapolis, for Jeffrey, Special Counsel Indianapolis. City of appeal from an action is an J. This
Arterburn, Indianapolis, brought appellee, City of County, Superior to set aside of Marion Court appellant, enjoin Public an of an order of enforcement history of this of Indiana. The Service case is follows: a result of order Commission was the
The appellant, In- proceeding originally commenced 18, 1953, September Company, dianapolis Water petition for the when it filed with the Commission charged approval to be for of a new rate schedule change authority petition for service. The also asks depreciation was the rate on reserve for com- which its Indianapolis original puted. intervened 18, 1954, proceeding March before Commission. On hearing, approv- after the Commission entered its order ing fixing a new schedule of rates new rate depreciation. City thereupon, against commenced this action Superior
the Commission in the Court of Marion County, enjoin to vacate that order and the Commis Indianapolis sion. The Water intervened as a defendant Septem therein. Trial was commenced on ber hearing 1954. At applica the close of the on the temporary injunction, tion for the trial court found necessity enjoin no the Commission at that time but ordered that the amount collected as. the result of the *6 new rate by Company increase be held the available for the final decision in the case.
Pursuant to the direction of the trial court the perfected statutory appeal from the Commission’s оrder and the same injunc- was consolidated with the tion action. The consolidated action was heard the Superior County Court Marion in banc on the merits. At the hearing, conclusion of the the court found that presented evidence materially was different from that during which had been proceedings offered the before Commission, and directed that all such additional presented and new evidence to the court be transmitted to the reconsideration, Commission for provided its 1929, Acts p. 530, being ch. §8, §54-436, Burns’ Replacement. Commission, reviewing after the additional evi- dence which solely concerns the amount of return on used, the rate base affirmed its earlier determination return, fair value and but found that the annual gross revenues under the new schedule of rates would approximately be $111,000 in excess of the amount re- quired produce to the income to which the Commission Company found the was Accordingly, entitled. the Com- mission modified its order and directed the Water Company to file a designated schedule of pro- rates to gross duce income in the amount estimated in the reported action duly and certified original and order County. Marion Superior Court to Superior Court February Thereafter, of the Com- the order County reconsidered of Marion intro- being evidence additional no and there mission order, duced, aside Commission’s trial court set holding City, in favor rendered a decision and unreasonable Commission modified order was judgment trial court A and unlawful. permanently vacating order, the Commission’s entered enforcing order enjoining the from such Commission enjoining thereof, permanently any modification charging the rates fixed from Commission order, requiring the to refund to the rates consumer the amount collected excess existing originally application at the time the was made to the for an increase.
Upon the resubmission of the Commission’s modified court, additional order trial no evidence was pending introduced the Commission moved that ground.that action be on the there no dismissed showing supported it was not substantial evi- motion, dence. The trial court denied entered *7 consisting special thirty-four a of fact items thereon, judg- with conclusions of law and rendered against and and ment the Commission Water City, in favor of stated the above. Motions a against by parties new trial were filed the whom the assign- judgments and The were rendered. overruling upon errors .is ment of based the of the motions for trial. asserted new Thе motion that the by trial court decision the was not sustained suffi- contrary law, cient evidence and on the part Commission, of the the court erred in over- ruling its motion dismiss. brought by
This is an action under the statutes the testing City purpose for the whether the or fixing making in the order rates question kept jurisdiction, conformed within to the standards fixed the statute. present brought by appellee,
The case is under following statutory provisions: “Any firm, person, association, corporation, city, public utility adversely by any town or affected decision, order, ruling, determination, requirement public may or direction of the service commission superior commence an action in the circuit or court any county portion utility in which that subject-matter procedure which is the before public operates service commission seeks to or against operate, the commission to vacate or set enjoin any aside or the enforcement of deci- sion, ruling, order, determination, requirement or ground direction, is insuffi- same cient, unreasonable, unlawful, procured by or fraud or other unlawful methods.” 1929, 169, being p. 530, Acts ch. §1, Burns’ §54-429 Replacement. sumers or within located or of Marion circuit court of the “Any single the commission take an thirty any utility County.” [30] genеral municipality or days county affected term of the from the rendition thereof in which the appeal a rate order de novo to the superior ten [10] court con- 1913, 76, 167; 1933, Acts p. p. ch. §9, §4, ch. 928; 1947, p. being ch. §1, §54-203 Replacement. Burns’ 1951 What, scope then, statutory of the court’s re- words, may In impose view? other the court its own idea what is “insufficient” “unreasonable” place of that of the Commission? makes contention that this is “an appeal de novo” under the statute and trial court
79 weigh evi opportunity the thereby has the opinion for that and substitute dence judges, subjected to We, are as Commission. the same weaknesses desires and to the same natural judgment personal our all have to substitute men against others, guard such and we must that of legislature a fact- created the has Where inclinations. finding body experts in branch another not be government, their should decision judges, we, as lightly and set aside because overridden contrary opinion might the same evidence. reach long experts of the dis act within the limits as the So given by statute, is their decision them cretion thoroughly question reviewed raised here was final. Y., by Judge the case N. Treanor in C. and decided 449, Singleton (1935), Ind. & L. R. R. Co. v. 207 St. 89, (Cert. 296 56 S. Ct. 190 N. E. den. U. S. expression 409.) L. that the 80 Ed. This court deсlared “appeal novo” act under which de as used meaning brings not have the same this action does justice peace, appeal as used in cases an from to a court. the latter the case on circuit In situation appeal if in the circuit it had been stands court (cid:127) legal originally commenced in court. No aifect given justice peace. Just trial before the opposite “appeal” an taken from is true where order of Public Service Commission. being p. 255, Acts ch. Burns’ §5, §54-112, creating Replacement, Commission, provides: commission created act [§§54-102, “The proceed- in all 54-120] shall controversial 54-109— ings and shall make its impartial fact-finding body heard an upon in such orders cases impartially facts in no it. shall found The commission proceeding, during hearing, act *9 proponent opponent role either of a on issue to be decided it.” 167, being 1913, 76, p. Acts ch. §84, Burns' §54-439, Replacement, provides: 1951 proof party “The burden of ad- shall be seeking verse to such commission or to set aside any determination, ... or order of the commission complained case unlawful, of is unreasonable or as be.” pertinent Another statute hereto reads follows: rates, tolls, charges, joint “All schedules- and rates fixed force the commission shall be in and prima lawful, regulations, prac- be facie and all prescribed by
tices and services the commission prima shall be in force unless- shall and facie reasonable finally brought found otherwise in an action purpose pursuant for that provisions to the of sec- seventy-eight eighty-five.” tions 1913, being 76, p. 167, Acts §77, ch. Burns’ §54-428, Replacement. 1951 appellee, City Indianapolis, burden, of has the us, overcoming
in the case prima before facie presumptive reasonableness the Commission’s impartial order, certified to the trial It only court below. can overcome this burden by demonstrating showing to the trial court order is not Commission’s sustained substantial regarding evidence. This rule “substantial evidence” adopted by Supreme is one Court the United (1934), 1, States Florida v. United States 292 U. S. 12, Sup. 603, 1077, 54 Ct. 78 L. Ed. where the court said: (commission’s) “. . . sup- of fact
ported by subject substantial evidence are not
81 province of the court to substi- It is not the review. judgment tute their for that commission.” recognized repeatedly: doctrine This court has this Telephone Indiana Bell Public Service Commission v. 467; (1955), 2d Pub. Co. 235 Ind. 130 N. E. Serv. Wayne Ry. (1953), Ft. U. Co. 232 Ind. Comm. v. 719; Pub. N. E. 2d Serv. v. (1935), 668; Y., E. LaPorte 207 Ind. 193 N. N. Singleton, supra (1935), & L. R. C. St. R. Co. v. 449, 190
Ind. N. E. 761. rule, statutory appeals The “substantial evidence” kind, fact-finding leaves function of rate-making Commission, bеlongs, with where *10 attempt responsibility and to it duty does not make a court, belong. it does not where place, rate-making legislative, first is a In the judicial function, attempted and even if a statute to lodge power such in a court would be unconsti Although tutional. we have a constitutional government system of in judiciary which supreme determining jurisdiction to be in said and powers of limits on the the other branches of the government, laws, yet as fixed the constitution and supremacy point does not extend to the where we judgment for, our substitute or control the discre legislative tionary action of the branches, executive or long sphere jurisdic their action so is within and tion fixed the statutes and constitution. Were it otherwise, usurp, thereby, the courts would all discre government tionary action in the in effect would directing supervising That, all branches. of course, not, and is not the rationale under which constitution was formed. Federal our Radio Com. v. (1930), Electric 464, General Co. 281 U. S. 74 L. Ed. 82 389; Power v. Potomac Electric
969, Sup. Keller 50 Ct. 731, Sup. 428, 43 Ct. 445. (1923), L. Ed. 261 U. 67 S. Co. v. Marion C. Ct. rel. Public Service Com. ex In State E. 2d E. 2d 103 N. (1951), Ind. 100 N. dissenting opinions majority take and the both tenet. unequivocal on this fundamental stand the same dissenting Emmert, (on of a Judge the denial writ opinions quotes of prohibition), and reviews carefully, says Supreme States Court the United they power to fix rates the trial courts have the if anything else, in little time for view “will have questions complicated and rates- involved and value hearings. Why proper in the voluminous evidence going at if this have all court usurp powers?” The “substantial evidence” rule avoiding only rule for such a is the reasonable Ser- bog. bonian has, indeed, rejected Supreme “The as un- Court statutory provisions in constitutional the some legislature sought impose broader has duties upon duties, of review the courts. Such view, pro- court’s would violate constitutional separation powers government.”
vision page L. 28 Ind. J. at strictly judicial
Under a review to which we are here, determining limited in addition to whether or not supported by order the Commission is *11 evidence,
substantial there is another matter in may always properly the court inquire, question is whether or not the order is contrary to law-. Is the order or the result of considering failing or to consider some factor or ele apparent improperly it ment which influenced the words, result or final determination? In other did stay jurisdiction within the Commission and con
88 legal principles statutory standards form to legal purely a order? This is producing its in involved the courts to determine proper оne for question and a statutory pro regardless any any judicial review in legality questions of vision. These issues include legal procedure of fixed and violations administrative questions distinguished fact or from principles as jurisdictions In some expert judgment or discretion. performs this function. Ballman the writ of certiorari 646; 220, (1952), 102 N. E. 2d Duffecy 230 Ind. v. (1947), Corp. N. Edison v. Maltbie 298 Staten Island 825; S., 374, 705, 2d L. R. 2d J. Y. E. 8 A. 73 C. 73 N. 1173; S., p. Ad Utilities, 73 J. Public Public C. §65, 510; Procedure, p. 10 §168, Bodies and ministrative Jur., Certiorari, p. 533. §10, Am. an
It is established law this state there is against right appeal to to the courts for relief inherent personal rights property the violations or legislature a result of administrative action. The absolutely deprive may not one such relief judicial However, provides or review. where the statute judicial procedure remedy, for a for such review or for a any equitable procedure excludes common law statutory provisions adequate the extent such are protecting preserving rights guar such substantive constitution, general prin anteed the statutes or statutory ciples procedure of law. Such must be followed remedy at least to the extent of the available before equitable remedy. resort made common law or Duffecy, supra (1952), 220, Ballman v. 230 Ind. 102 N. 646; Joseph Seagrams E. E. 2d & Sons Bоard v. (1943), 491; 220 Ind. Com’rs. 45 N. E. 2d State ex White v. Hilgemann, Judge (1941), rel. 218 Ind. Warren v. Indiana 129; Telephone
34 N. E. 2d Co. (1940), Ind. N. E. 2d *12 reviewing of
Judge Shake, decision in a case Board, Industrial said: thing an “Strictly no such speaking, there is agency. It appeal rect is cor from an administrative say that of an administrative to the orders review; they body subject judicial are to and that requirements process. due must be to meet the of so necessary may to the end that there review is Such competent juris adjudication be an a court agency scope diction that the has acted within the supports powers; its that substantial evidence conclusions;
the factual
and that
determination
applicable
comports
found.” Warren v. Indiana
the law
with
the facts
Telephone
supra
Co.,
(1940),
217 Ind.
(3) stay For the trial court to within its constitu- jurisdiction infringe upon tional and not another branch government, judicial review of the .the order of the Public in this .Commission case is limited .Service to.:
(a) A determination of whether or not the order or Commission is unreasonable in the supported by that it sense is not substantial evidence. (b) A determination of whether or not the order of the Commission is unreasonable or unlawful contrary sense law because of a vio- legal principles statutory lation of certain or re- quirements or the consideration of or failure to con- apparent which it is or elements factors sider certain order. or final result improperly influenced the “insufficient, and unlawful” unreasonable The words fixing import, terminology in the statute like only *13 case, grounds review, have in this of meaning specified This above. limited content or grant give statute necessary in order to is ing Where the judicial life. constitutional review terminology of or “unreason statutory “reasonable’ opinion it is in the limited sense able” used in this is logic might that to It said with some referred above. be guaranty, particu a constitutional violation of larly raised, is could the issue confiscation where However, properly be classified also as unreasonable. since here no that issue is raised we see reason deciding questiоn such a in this Public case.1 Service Indianapolis Rys. (1948), 656, Ind. 76 Comm. v. 225 841; Wayne Ry. 2d Ft. N. E. Public Serv. Com. v. U. Co., supra 719; (1953), 232 2d Ind. 111 N. E. 73 Utilities, p. S., (d), J. Public 1186. C. §66 might urged 1. It with some realism on the side an or means consumer that “unreasonableness” of rate order confiscatory payer also one that is forced as to rate who is pay excessive, beyond a rate is extortionate or present value social of the services rendered. Under our urban get pay no but to He order the consumer has choice water. dig Thus, his rates cannot own well. extortionate or excessive might confiscatory payer. Likewise, as to the rate seem the rate confiscatory utility, if too is com- low as to the law because pels it to serve all without discrimination. Under such rationale (the is at side rate Commission bound the extremes on each utility) by safeguards payer against con- constitutional fiscation, giving safeguards. thus each standards and the same Corporation (1943), Terre Haute Gas v. 221 Ind. Johnson 1051; 484; S., Utilities, p. §30, 16 E. 2d 45 N. C. J. Public 73 Jur., S., Law, §602, 1202; Public C. J. Constitutional 43 Am. p. §67, p. Services, Utilities and The case of Public Service Commission v. Indiana Telephone supra Company, (1955), Bell 235 Ind. 467, recently court, N. E. 2d decided should be distinguished by reason of the fact was con- confiscatory question constitutional cеrned with the deciding court, issue, although rates. In the trial conforming acting statutory procedure, to certain general jurisdiction equity under its and was entitled judgment independent at to arrive its on the evidence presented, determining the issue of confiscation of property, any ordinary equity suit in where an presented. fact issue of is In this case the order of finding the Commission not be set aside if the supported by order is substantial regardless evidence, finding of whether or not the supported by the trial court evidence. finding
In such a case the of the Commission must prevail prima since made facie correct by the statute when the evidence *14 in is conflict. The given Commission is this function the statute as a legislative act right and court has no to substitute opinion its different upon conflicting based evidence. For the court to do so in would be violation of the con- provisions separation stitutional powers for the of the government. hand, On other the order of the Commission should supported be set aside if it is not substantial
evidence, or if it is found contrary to be to law opinion. in sense in any statute, used If any legal principle, or rule pro of substantive or cedural law composition has been violated in the order, final it cannot stand. forty-four
We have special findings examined the fact of the trial court which formed the basis of the order., judgment setting aside the Commission’s The contentions of and the findings court of the trial grouped summarized and City support thereof in as follows: great rate Company received too
(1) That inclusive.) (Findings both 5 to increase in earnings which Company retained (2) has The this is and dividends and above over were excessive unjust. and are unreasonable that the rates evidence 34.) inclusive, 12-17, and No. (Findings both additional (3) have issued should than expansion rather capital for stock and bonds 20-24, (Findings earnings purpose. retain inclusive.) both property
(4) used and useful The valuation of 29.) (Findings 28 and ($36,500,000) unreasonable. (Find- improper. (a) Real estate valuation ing 30.) deposit for con-
(b) and advancement Customers’ (Findings improper. in valuation struction included 33.) and unreasonable, (5) are un- The income and the rates just (Findings 24-26, 11 and both inclu- and unlawful sive), of return is excessive. rate
We shall discuss first three above features they together, since related. are great expended by A amount time and effort is attacking a former order of the Commission fixing time,
made in 1951 at that rates attempting to demonstrate such rates were unreasonable and rates exorbitant. The fixed adjudicated the 1951 order have been court *15 power jurisdiction go at this late date has no or to Assuming back and re-examine such an order. the Com granted had erred and mission excessive rates. showing, there would not be there is no which slightest justification for the Public Service Commission granting Company, any other than that which rate present upon produce would a reasonable return theory property. The value of its used and useful fair propounded by City ways. cuts both If conten true, tion were then a rate established in 1951 which Company, was insufficient or caused a to the would loss Company entitle the at this time to have a rate estab recoup deficiency. lished which could such a or loss utility Past losses of a cannot be recovered from consumers nor can consumers claim a return profits earnings may appear and excessive. S., Utilities, 1045; (d), p. 73 C. J. Public §25 Jur., Services, Am. p. Public Utilities and §§162, profit The operations chances of a loss from is one enterprise of the risks a business must take. The Com- pany must gain bear the loss and is entitled to the depending upon efficiency management of its the economic uncertainties of the future after a rate so, premium fixed. itWere not placed would be upon inefficiency, negligence management. waste and policy It is encourage better thriftiness, saving and frugality part management. of a Such eventually incentive inures to the benefit of the con- succeeding sumers in hearings. rate makes the (referring further statement earnings retained Company paid Water and not dividends), out in clearly “this indicates either an in- flated rate unreasonably high base or unjust rates charges permitting an exorbitant and unlawful return to the Water or both.” Thatcher, Dr. public’s witness on the appellee, side which the City, stated, now defends “I am suggesting there *16 especially Company, earnings by the excessive been has testimony is uncontradicted. years.” This latter the in utility re- earnings of the argues the that -pays- out in divi- it what above by it over and tained the benefit for of trust fund is some sort dends belong to vague way not does consumers, and in some are contentions Company. These unorthodox the Water expert, financial that fact in the face made fact, divi- stated, public, in for the a witness too low. Never- of the Water dend rate Company had that the theless, is made further claim a earnings wrongfully used for addi- which excessive have been expansion should capital аnd which tional capital stock pay an increased dividends on used to capital issue; money from stock received along capital expansion have been used issue should could, have issue, on also the interest a bond with earnings.” alleged paid “excessive This out of the been declaring nothing that the divi- more than contention is upon outstanding capital utility rate of the its dend stock, criterion, by which one determine is a earnings income, or not the returns and whether Company, is and unreasonable. Of exorbitant course, it understood that the total net earn- should be ings utility upon a fair valuation of its a based entirely prin- is an different standard and useful assets ciple. utility’s say
To that a are rates unreasonable be large pays high per cause its dividends or has a share earning rate, popular fallacy is a that seems to appeal fancy. public to the a is Such statement reasoning not that of which sound made. It is only thinking. superficial evidence of The statute does permit the Commission to fix rates based on outstanding capitalization stock issue. The and the relationship fair outstanding may not have
stock utility, or property used to the actual invested cost, fair value. reproduсtion or its kept relation- capital could be same If stock in the ship of the assets used to the “fair value” stock, by issuing times, all new at outstanding stock, the or earn- dividends reduction of outstanding might ings reflect the reason- stock However, of the return. or unreasonableness ableness supposition of the contin- unrealistic view *17 day operations. changing every and costs in ued values change in Indeed, every day every a and minute there is any corporation that utility in values in the or the keep impossible the It to outstand- matter. would be ing relationship assets. in exact with the stock may past practices companies from have a Some companies, of stock. Other watered or excessive issue may practices, an conservative and efficient have outstanding surplus and under of stock have issue Company by of accumulated and left the reason unusually rates, surplus may not low dividend by any outstanding represented stock. Stockholders earnings corporation see fit to leave their in the drawing them out as dividends instead and thus strength up prestige financial and build the of the Com- pany. result, cheaper a a As is able to borrow at ultimately payer This benefits rates. the rate as well Cоmpany. prevail as the The latter situation seems to testimony according the here to of all witnesses on the matter, including subject expert testifying the financial City. of the side The record shows the common per paid has earned stock share and out as divi- $1.87 only per and dends cents 50 cents share on Class B, respectively. Earnings A and left in a business is expensive acquiring least capital. method of new belong corporation earnings to retained Such a to receive they entitled shareholders, are investment. increased on such return City that contention unsoundness The earnings appear on stock or dividends where either charged that the rates large share, it indicative per City, appellee, unreasonable, The is self-evident. are object be, be, first probably should would outstanding stock measured to a rate base utility. City, complaint and the appellee, The makes further Company was, court’s trial Water $9,000,000 in should have issued an additional $9,000,000 preferred in bonds at at or stock 5% purpose expansion. No issue for the 3% Commission, Public kind was raised before the Service any time that and it made no or order at such financing place. per such take engage reorganization lаw, mitted under such capitalization financing and such without hear ing permitting operation and an order Public Service Commission. Burns 1951 Re (§54-505, placement.) If the felt consumers *18 done, they petitioned should have been should have compelling Public Service Commission for an order engage Company financing expand to in this specifically its service as directed in the order. The charged hearing cannot in a rate for fail ing engage large to operation in a scale financial place by any has never taken and was never in issue pleadings specific and on which no order ever was made. permit fixing The statute does not of rates on a hypothesis or a situation in never existence. Bobbitt, recently
Chief Justice said Public Service 92 supra Telephone Company, Indiana Bell
Commission v. 1, 467, 2d (1955), Ind. 130 N. E. arbitrarily (commission) “Appellants could paid appellee had taxes federal disallow saving- assuming obligated pay by a tax to
was capital did not exist. This a structure which under arbitrary and unlawful.” action both findings court, therefore, with reference earnings paid, retained, or the to the rate of dividend perform operations other financial failure Com- nothing pany of has to do with the fair rate return property case nor the fair valuation of the Company used in Water service. consider the of the trial next court with We reference to the valuation fixed the Commission. Finding appraised trial nf the court states that the Company’s estate, real of im value of exclusive provements, $4,908,568 was fixed at and it fur only ther finds that the maximum value could be taxation, $1,872,480. assessed which was In the amended order of the Commission it made figure $2,170,684 clear that the Commission used original figure for its valuation which was the cost comparatively the land. There is small difference figure between the total fair value used the Com figure. Regardless this, mission and the taxation however, contrary of the trial court is law, attempts rate-making in that pur to use for poses purposes, which, a value for land fixed for tax by statute, is one-third of its market or sale value in p. 724, being 1949. The Acts of Ch. §5, provides: §64-1019n, “The rate of assessment on lands shall not ex- thirty-three per
ceed and one-third cent of the market or sale value as March 1949.”
93 providing for legislature may a valua- enact a law No rate-making purposes at utility property for tion of provisions of §54-203, The than its fair value. other full any require- respect Replacement with Burns’ 1951 longer effective of 1949 no on the Acts are ment based in would result applicable. To construe otherwise unconstitutionality. Jur., Utilities 43 Public Am. Q. 656; Chicago, Services, B. & p. Knott v. §120, (1913), 33 L. Ed. S. Ct. 230 U. S. 57 Co. R. findings 31, 33 of trial court are also The 32 and supported In contrary the evidence. law findings the trial court states that these deposits meter and customers’ ad customers’ construction “has been included vances for before the Commission and all estimates value findings arriving itself in at its of fair the Commission in the total These are not items included value.” figure compose fixed for fair value of the obliga deposits utility's property. an These constitute owes customers the same tion which to its any indebtedness, It is other bonded or otherwise. as not a deductible item more than bonded indebted legal principle The is a item. ness deductible involved Supply Company v. is well settled. Vincennes Water 5; (7th 1929), 34 F. 2d Service Commission Public Cir. Board Public Union Water Co. v. Utilities Plainfield 846, affirmed, (3rd 1929), F. F. 2d 30 Comm. Cir. 2d 859.
Under 28 and 29 trial court stated fair fixed the Public valuation Service property useful of the Water for used and Com- pany, rate base was unreasonable. standards to be used the determination of value is stated in the statute. Replacement, supra, 54-203,
Section Burns’ 1951 *20 part, provides: property “The all of ev- commissiоn shall value
ery public utility actually for the used and useful value, giving public convenience of the such consideration as case to sented or which the commission is authorized to at its fair appropriate in each deems- may pre- all of bases valuation which by following provisions consider the of this section. As one of the elements such valuation the com- give weight mission shall to the reasonable cost of bringing property efficiency. to its then of state good ... No account shall be taken of will presumptive any utility in into account growing operation values out of the of going aas concern. ... As an element determining value the commission also take reproduction prices, costs at current depreciation, less . . .” The Commission has fixed a $36,500,000 valuation of original as a fair value. The estimated cost of the physical plant depreciated September 30, on 1953, was $33,565,000 prior hearing to the close of the had been, by additions, actual $36,700,000, increased to to supplies which should be added and materials amount- ing $410,000, working to capital. and cash for It will original undisputed figure be seen that cost ex- $36,500,000 ceeds the sum by of fixed the Commission. figures The on the fair property valuatiоn of the of Company September 30, 1953, by the Water Company $47,500,000. public’s The on the witness figure same matter $32,400,000 testified to a as the physical plant fair only, value date, on the same to which would have be added $3,280,000 more than as the actual increase utility plant made to the from September 30, 1953, to the date of trial with an addi- working tional sum for capital. cash bring This would figure by public’s minimum witnesses for depreciated original at cost and for valuation fair finding (October, 1954) court’s the trial the time of by the Public Service that fixed an amount excess $36,500,000. Commission testimony of the various witnesses “fair value” an ultimate nothing their conclusions on more than duty Public Service which is the
issue from all the evidence to determine Commission conclusion or final presented. “Fair value” is a figure, “values” or factors drawn from all the various weighed in accordance with statute to be Commission. fixed is below
The fair value figures reproduction depreciation $64,500,000 cost less $47,100,000 presented the Water *21 public’s witnesses, respectively. connection, City the
In this contends that Com mission should not take into consideration the cost of
reproduction depreciation; less that this measure Supreme by of value has been eliminated Court of the United in Federal Power States Hope 591, Company (1944), Com. v. Nat. Gas 320 U. S. Sup. 281, L. An of that 64 Ct. 88 Ed. 33. examination reproduction case shows that it held that de costs less preciation controlling by not the sole or criterion which a rate base is established but that other factors original may considered, including cost. This latter be light item, in the of established considered facts surrounding may controlling conditions, be more with experts are in that who field rather Commission says The case in effect the courts than the court. any one or more will not limit investment, original valuation, prudent be it of methods value, reproduction. present cost, or cost This court reproduction depreciated, is a held that 'cost has 96
proper item to be under statute in arriv considered Public Service Comm. v. ing figure. at a fair value supra Indianapolis Rys., (1948), 656, 225 Ind. N. E. 76 2d 841. rate-making balancing process of all involves a others; balancing probably factors these
the owner’s or investor’s interest with the con- side, may interest. On the one sumer’s rates not so low to confiscate the investor’s property; on the other interest side the rates high charging injure as to not be so consumer price an exorbitant and at the service same time giving owner an unreasonable or excessive Regardless weight profit. given to be the fаctor reproduction cost, figure it seems the for fair valua tion fixed the Commission could be sustained alone original upon depreciated. the evidence of cost Of this complain, figure. cannot since is the lower Co. v. United States Joseph Stockyards St. (1936), 298 38, Sup. 1033; U. S. 56 Valley Ct. 80 L. Ed. Ohio Water Co. v. Ben Avon Borough (1920), 253 U. S. Sup. 908; 64 L. Ed. Ct. 48 Colum. L. Rev. 1.
The trial court’s- Nos. and 29 that the fair valuation property of the used and useful of the Water fixed $36,500,000 Commission at is un- reasonable, and supported by excessive is evi- dence; hand, on the other Commission’s -is based on substantial evidence.
We come now to a consideration of the trial court’s *22 finding City’s and the claim that the rate of return testimony is unreasonable. The and briefs all refer to “gross” return, income or as the remaining revenue subtracting after expenses all operation and other except deductible items the interest or debt cost. This seems to us a misnomer and in order to be more concise figure “net” necessary, as shall, to this refer we where or return. income brief, upon the heavily testi- relies in its
The Thatcher, ques- the witness, on Dr. public’s mony of the the fair valuation adequacy net return tion of testify on only figure. fact, he the witness In City’s matter. on that of the case public’s the side testimony the accept most shall, therefore, as his We examining in that the trial court’s favorable respect. approaches problem of reasonable a
Dr. Thatcher using capital of the Water structure return as his calcu- Company a base for on December figure the assets lations, value rather than a fair The provided result used and statute. useful nothing figure capitalization more than his that Company. property a of the Water book value of the only be It could relevant on two theories: determining purpose For what income 1. in order that should be received strength maintained, Company financial investors, its securities be attractive to that would give opportunity develop expand thus it the words, community require; as the needs of other capital. to find the cost of reasonable figure return, base, upon rate 2. As a which to a only orig- assumption represents but on the depreciated, only inal cost and then on the further accounting assumption practice has been accurate. ground compared
The first is incidental here with second, major directly which is issue involved in this case. capitalization $33,978,300 he uses is taken from statement of the on December *23 composed equity (common, pre-
This is of the stock surplus accounts) plus ferred and the debt. He reаches estimating the determination of a reasonable return average what he believes to be a fair overall cost capital. present (dividends He finds the actual cost interest) and Company, to be for the Water 3.31% says: large “The overall rate of is the in a result 3.31% part . . paid of the low dividend on common stock. capital . The cash cost of be con- 3.31% sidered the bare bone cost and should not be con- my capital fused with In order estimated or rate of return. carry successfully aon business capital necessary attract to finance needed addi-
tions, earnings a must have in excess of bare requirements.” interest cost and low dividend He capital states the overall cost of of the Water Com- pany should be increased to for a reasonable 5.13% return. He additionally, said that there should be suffi- earnings cient to create a surplus reasonable to take care of the risk involved in the investment and unfore- contingencies. seen Under his recommendation the owners would per receive five to upon six cent their equity. He present condemns the payout low dividend rate of the Company Water averaged ap- has proximately earnings on Class B common 30% and less earnings than common, A Class 45% during years. recent He recommended that there should be a payout dividend public’s ratio. The 70% finally witness recommended capitalization as September 30, 1953, in $34,436,900 amount of 5y%% used yield rate basis should a return $1,894,030 the amount of as a net return. This is the figure minimum as shown in all the evidence as to the return which the Water would be entitled original value cost purely on the book and is based depreciated. Com Travers, testifying for Water Frank J.
Mr. to the added pany, $3,000,000 should stated be figure Thatcher capitalization Professor credit increase bank of additional cause Sep plant amount since in that to the additions *24 Thatcher’s (the of Professor date tember he figures). figure $37,337,037 stated a of With maintaining Company’s average financial the of cost the resulting income standing in a net would 6.09% for the included $2,426,907. His calculations 3%% preferred com debt, for the the stock 11% 5% capitaliza money. undisputed equity It that the mon $34,- figure the Dr. Thatcher amount tion used materially 436,900 September 1953, had increased on by Company’s statement at ($3,280,000) as the shown At that time time of the trial lower court. the the $36,500,000 it fixed the the valuation of exceeded therefore, using would, appear, It Commission.
figures City’s (increased by time of witnеss trial), a return as recommended with 5%% witness, $2,074,000 in same the return should be figure $1,894,030 stead of since the latter was not on the addition based Water invest during subsequent year occurred ment which highest figure The return in recommended a $2,426,907. the evidence was The found approximate the net income on the rates fixed would $2,070,000 $2,140,000 it before its order modified reducing gross $111,000. return in the amount of figure highest figure, The final is between the and lowest resulting fact, testimony. slightly from In it supported a below median and is substantial evi experience proposed dence. The actual under the rate during draught period in the summer of 1954 produce approxi showed the rates would an income of mately $2,037,994 an annual basis instead of the highest estimate of the Commission. On this basis this produce to, very not, income would return if close $36,500,000. public’s on the value of The wit 5%% testifying appellee, City, ness on the side of the stated in this “I very connection: believe that is a reason 5.5% able rate earnings of return and that that amount of integrity would maintain the company. financial .. .” This is the lowest rate of return recommended by any witnesses before the Commission or trial court. highest upon rate of return which there was testimony upon the valuation. There not 6%% only is support substantial evidence to the Commis sion’s return, a reasonable but is not by any contradicted presented by City’s evidence side of the issue.
Finally, finding No. says 11 of the trial court in sub- present stance that grants 1954 order an increase *25 in rates over the 1951 order from 25 to Evi- 37.5%. dence (and before the Commission court) also the trial upon which it among acted things showed during other this same interval Company the Water payroll had a ; cost increase of taxes ; gen- increase of other 25% 80% operating eral costs increase of The evidence 31%. further shows that since the valuation fixed in the 1951 order $30,500,000, there $8,491,498 has been added expansion further by the Company bringing Water figure total valuation to $39,000,000.
From the examination of testimony and evidence quite it apparent is there is no sup- evidence to port finding of the trial court that the order of the granted Commission Water excessive sup- hand, evidence earnings; substantial on the other findings of the Commission. ports the final order reference gone detail with into considerable haveWe trial presented the Commission before to evidence rather unorthodox court, mainly because of the City. Such of the and the contentions of the trial court evidence, investigation it should examination weighing purpose of understood, done for was not be substituting opinion that of either for it, our purely for done This was trial court or Commission. determining of the Com- purpose if the That supported substantial evidence. mission was The Com- amply demonstrated. supported, so legislative within function performed its has mission stepped the statu- outside sphere. It has not proper The placed upon it. limitations tory or constitutional permitted to then should Public Service legislature. provided as the facts determine thereunder, judgment and of the trial orders for court, and this cause is remanded is reversed opinion. proceedings are consistent with concurs; Achor, J., sepa- J., Bobbitt, concurs with C. opin- Emmert, J., separate opinion; with concurs rate ; Landis, J., in result. ion concurs
Concurring Opinion majority concur in the J. I result Emmert, reasoning by all the which it opinion, but not in appeal accomplished. In an from an order of the Com- rates, ought fixing utility we have one mission the trial court to consider the evidence standard appeal, takes the and another standard when *26 appeal. Equal takes the a customer when 102
justice give protection under law should the same payer collector, the rate that it does the rate and such judicial a double standard for оf cannot review rates adequately protect the users of the utilities’ services. et al. v. Indiana,
In Public Service Commission of Telephone 1, 1955), 1, Indiana Bell (Dec. Co. 235 Ind. 467, 130 N. E. 2d the Commission relied on Public Serv Indiana v. ice (1935), LaPorte of 462, 207 668, holding Ind. 193 N. E. in its find ings of the upset they Commission would not be if were evidence, sustained repudi substantial but this court rule, ated that and said:
“Hence, where rate established the Commission confiscatory, attacked may, upon the court its own independent judgment, review that issue as to both law facts, rights to the end that constitutional protected. Public Service Commission v. Ind. Bell. Tel. (1953), 332, 347, 232 Co. Ind. 751, supra; 112 N. E. 2d Serv. Comm. v. Indianapolis Public Rys. (1948), 225 656, 841, Ind. supra; 76 N. E. 2d Staten Island Edison Corporation (1947), 374, v. Maltbie 296 N. Y. 73 N. E. 2d 705, 707; Opinion (1952), Justices 328 Mass. 679, 259, cited; 106 N. E. 2d Joseph cases there St. Yards Co. v. United Stock (1936), 38, States 298 U. S. 1033, 720, supra; 80 L. Ed. 56 Valley S. Ct. Ohio Water Co. v. Borough Ben Avon (1920), 253 U. L. S. 64 527, supra.” 40 Ed. S. Ct. Joseph Stock Yards Co. v. United States
In St. (1936), 38, 51, 52, 298 U. S. S. Ct. 80 L. Ed. 1033, 1041, 1042, majority opinion by Chief Justice Hughes reasoned:
“But the Constitution rate-making fixes to the limits deprivation power prohibiting property with- process taking private out due law or the prop- erty public just compensation. use' without When *27 judi- directly, subject to legislature action its is acts the prevent the in order scrutiny to and determination cial legislature power. transgression The оf these limits of by any scrutiny determination preclude that of cannot finding. legislative Legislative declara- declaration subject independent necessarily to is tion or by courts of upon and the law judicial the facts review jurisdiction that competent the end Constitution to may Nor supreme be maintained. law the land legislature escape limitation the constitutional can agent agent findings by authorizing make that to agencies, Legislative kept that limitation. has within peculiarly varying qualifications, work a field with expert may and exposed political be demands. Some to difficult impartial, It is subservient. not others giving requirements a of law in them to observe hearing receiving say But to their evidence. findings consti- be made where of fact conclusive involved, rights liberty property are al- tutional though clearly that the evidence establishes rights- wrong invaded, are and constitutional have been rights mercy place to those at the of administrative is seriously impair security inherent in officials and to safeguards. judicial prospect, without mul- our That tiplication agencies, one of administrative to be judicial lightly regarded. It retain is said we can authority weight of when to examine the evidence right personal libеrty. question if concerns the But so, privileged perform be it is not because we are to judicial duty in that case for reasons con- our disregard principle applies it in others. venience to rights person property pro- either or of are when sys- tected constitutional restrictions. Under our judicial there tem is' no warrant for the view that competent power of a court can be circumscribed designed give arrangement legislative effect going beyond of consti- the limits action administrative authority. purport of the decisions tutional This is independ- respect to the exercise of an cited above with upon facts confiscation judicial judgment where ent alleged.” 54-203, Replacement, Burns’ 1951 should Section pari Chapter materia with 169 of the 1929 construed in 54-429, seq., Replacement, Acts, et Burns’ 1951 § general concerning act of orders of the is the review gives right This latter statute of action Commission. *28 enjoin the “to vacate or set aside or enforcement of ruling, decision, order, determination, requirement direction, ground insufficient, or on the that the same is unreasonable, unlawful, procured by or fraud or other complaint by City unlawful methods.” The the did allege the order was unreasonablе and unlawful. The Company sufficiency did not complaint, attack the approved and if the evidence disclosed the rates were high deprive too the order would property the of its process law, without due as well as offend Sections Rights.1 12 Moreover, and 21 of our Bill of the Com- original pany in its brief did contend that “The end result of the trial court’s decision would be confiscation Company’s property contrary I, to Article Sec- 21, tion of the Indiana Constitution and the Fourteenth Amendment to the Constitution of the United States.” If appealed the had from the Commission’s open; every man, injury 1. “All courts shall be and done person, property, him reputation, remedy in his shall have by 12, I, due of law. . . course .” Section Article Constitution of Indiana. property by . law, just “. . No man’s shall be taken without compensation; I, . . .” Section Article of Indi Constitution Valparaiso Lighting ana. See v. Co. Public Service Comm. (1920), 190 Ind. 129 E. N. confiscatory, the ground the rates were on the order own required to make its have been trial court would findings inquiry judicial as and independent, return, but yield a reasonable adequacy of rates to City appealed and contended merely because the high should approved rates were too Commission’s re- chаnge the trial court the standard make determination. quired to in declar position this assumes
The anomalous court utility judicial ing when a for a review one standard rates, a appeal when user another takes on apparent appeal if both payer takes is at once rate right order, appeal each the same has take an from low, and claim are too can the rates to do. high. are If claim rates too we should the user adopted in Public Service Com to the standard adhere Telephone Indiana Bell Co. Indiana et al. v. mission of 467, supra, 1, 1955), 2d (Dec. Ind. 130 N. E. judicial independent court make its the trial would own valuation, operating expenses, inquiry and as to utility’s presented return the issues rates ap appeal, tendered the user’s while on the issues peal, adopted by majority in the under rule bar, only appeal at trial court find would whether there was substantial evidence before *29 findings. its The form and to sustain substance findings pre in each be different. the would On issues findings by utility’s appeal the sented as to valua tion, operating expenses, rates and return be would the court itself found what from the evidence intro it, including duced before of course the record before Cоmmission, presented by on the while issues appeal, user’s would be as to whether there was substantial evidence before Commission to valua- finding made as the Commission each and return.
tion, expenses, operating rates of the stand- suggest correctness that the It is idle to reviewing the action trial court in ard used appeal. The in this not us the Commission is before finding and urge that the Company and the Commission there was affirmed if be should order to sustain the Commission before substantial evidence finding. true If that is not the standard each essential as a judicially erroneous to be this court knows such duty Nor law, it. it to so declare matter of is its single requiring court the trial would a standard judicial independent inquiry and make its own property used and useful on fair valuation of expenses, service, operating producing the reasonable valuation, to be on the and the amount a fair return require- rates, constitutional realized violate legislative judicial powers. separation ments for of adoption appeal a standard in this does The utility fix more than the court fixes rates rates deprive it certain rates would when determines whether process property its without due law. City many are indis- has uses for water which pensаbly necessary municipal for it to function aas corporation of state. It not free to contract with Company many services, for and the of its water power police price state under the fixes the that shall paid by City. In fact the could not build system years its own if it chose water the future unreasonably high, to do it so. If the rates are fixed pay must them or its thus have water services shut off impairing corporate powers, exercise its thereby deprived property process of its due without just of law under the Fourteenth Amendment the same deprived property as the would be *30 low. rates too process if the were due without just precarious as as an individual user is case of have, and necessity he must which City, for is a water and main average position to build is not in a user though not have system. we Even own water tain his user contended any and a customer found case where property with deprived him of his rates that excessive him if happens to law, process of this is what out due compelled pay rates. excessive he is finding 18, 1954, made its the Commission March On water authorizing for metered an increase order and It found April 1954. and after effective from service and useful Company’s used value of the that the fair including supplies, not less property, and was material finding prima correct facie $36,500,000. was than This Re- Burns’ 1951 appeal to trial court (§54-428, on probative placement), there evidence of and unless was finding by excessive, any that valuation was value than that less trial court that the fair value was contrary to and law found would be only evidence evidence. The sustained sufficient from came to contradict the Commission’s City. Praag, Jr., Alex testified for witness Van who valuations, qualified expert on This witness an valuations, detailing he at after how arrived various opinion testified that it his the fair value was $32,400,-- physical properties was judgment figure, an He and not said this was a purposes. However, prepared appraisal for he sale had City’s exhibit introduced evi- No. was dence, that he which disclosed without doubt basing original opinion depreciation, cost less supplies plus materials and and construction work in progress. The same chart disclosed that when he used new, depreciation, reconstruction cost less observed work supplies construction plus material $47,177,320.00, at valuation progress, he arrived higher than dollars ten million than which is more *31 Commission, and by found valuation alleges excessive. to be now in an inflation has been judicially know there We corporation its and stock- A values since of its gain increase in values an from holders take depreciate they property, when values and stand loss just falling depression, during prices or a a time of corporation and its any stockholders as other the same corporate value of the when the or lose benefit a goes up the state condemns property or down. If compensated shanty accord- in town the owner shack according ing taken, to not what when and its value Indiana and the it cost him. The Federal Constitution they corpo- protect him, protect and both Constitution equal by prohibiting con- enterprise fairness rate with directly indirectly. property fiscation of either or its bought place in market Utilities are and sold established, that market value thus so a can be growth popula- Indianapolis, or an area like with industry, reproduction deprecia- tion cost new less disregarded fixing tion a cannot be valuation Prang’s making “judgment” opinion purposes. rate Mr. probative have value was without value and should ignored by been the trial court.
There no the trial was evidence before court sus- finding tain its thаt the Commission’s valuation unreasonable, company $36,500,000 at not less than was unjust, excessive, assuming unlawful even finding not a statement find- was of conclusions. From ing apparent No. trial 30 court used as upsetting one basis for the valuation the Commission company’s the assessed taxa- valuation land for adequately dis- Judge Arterburn opinion tion. for valuation. basis poses erroneous of that finding by the neither observed It should the well observed trial court nor testimony is not recital of evidence law that a known take the surplusage, it cannot finding. Although it is However, the trial finding fact. of ultimate place aof findings that the Commission’s made no court requirements previously statutory did not follow by us.2 construed in the trial court’s error
There is a mathematical testimony Mr. Carl Cecil No. based on had, By the time the trial before Commission. new avail- experience with the rates was revenue some highest light of this new evidence able. In the they would have estimate for the new rates estimated year operation produced the net sum in a full *32 by $2,102,000. The its amended order by $111,000, leaving reduced the rates the sum highest $2,091,000. then in the sum of The estimate Burns’, (Supp.), defining 2. in “Section 54-112 1933 by ‘The commission created duties of the Commission states: by proceedings an heard it this act shall in аll controversial be body impartial fact-finding make in and shall its orders (Our italics.) upon impartially cases it.’ the facts found specially generally. The facts be found and not These should findings enough specific to enable the court to review must be County, intelligently the decisions.” Etc. Commission’s Kosciusko 674, (1948), 666, v. Public Service Comm. 225 Ind. N. E. 2d 77 Valley holding 572. This v. was followed in Wabash Coach Co. 609, 753; (1950), (2d) Arrow Coach Lines Inc. 228 Ind. 94 N. E. Ry. Wayne (1953), Public Service Comm. v. Ft. U. Co. 232 Ind. 82, Indianapolis Exp. 719, N. 2d 111 E. and & So. Motor Inc. v. (1953), Public Service Comm. 232 Ind. 112 N. E. 2d page In the latter case at 382 the “A as court said: statement finding to what various witnesses testified to a is not of ultimate Flanagan, Hamilton, App. facts. & Wiltrout Ind. Tr. & Pr. Lowe, §1731, p. 350; 299; §53.24, p. 3 Works’ Indiana Practice §432, p. & Gavit Ind. Pl. Pr. 2365.” City’s expert on rate return recommended a 5.5% valuation, rate on of return which was the lowest rate by any proposed already witness. Since we have deter- $36,500,000 mined that Commission’s valuation proper, yield $2,007,- was return on this would 5.5% $83,500 which is but less than the estimated return yield. the amended rates would It conceded that was continually making was its additions to property producing service, used and useful in when fact apparent considered becomes the amended rates as determined the Commission just. were reasonable and opinion by precedes special the trial court
findings
law,
of facts and conclusions of
to
fails
comply
ordinary legal understanding
with
that an
opinion
should state the facts and the law
which the
opinion
court’s decision was reached. Such an
becomes
great
judgment
assistance to this court
if the
appealed here,
or to
subsequent
the Commission in
proceedings before it. There
special
should have been a
Company’s
the fair
prop-
valuation of the
erty
trial,
used
useful at the time of
what would
be a reasonable rate of return
property,
on that
necessary operating
reasonable and
expenses
produc-
ing
service,
and the revenues to be derived from
proof
new rates. The burden of
each
of these
upon
City,
and a
failure
find on an
legal
finding against
essential
fact
effect a
having
party
the burden on that
issue. Newman v.
(1943),
Newman
455; City
221 Ind.
48 N. E. 2d
*33
Easterly (1943),
v.
268,
221 Ind.
46
E. N.
of Frankfort
817,
319;
2d
Valley
47 N. E. 2d
Wabash
Coach
v.Co.
(1943),
52,
Turner
221 Ind.
Ill Commission, fairly the tried before was The case with reversed court judgment the trial should con in of law restate conclusions to its instructions judgment accord opinion, formity enter and to our with ingly. Opinion
Concurring agree properly establish that we cannot J. I Achor, utility rate judicial in review unequal standard an utility аnd applicable cases, to the one standard with However, do consider payer. I not to rate another a double opinion majority authorizes formerly an- Nor do I consider rule standard. Public in the case of Service the court nounced (1935), Ind. LaPorte Commission v. repudiated. N. E. to be fixing order of In case the rate the Public Service and unlaw- was attacked as “unreasonable allegation contention of “fraud ful.” There was no or provided by or unlawful methods” as et §54-429, other challenged seq., Repl. was rate Burns’ 1951 Neither being “confiscatory” unconstitutional and therefore (under Art. of Indiana and Constitution §21 the Fourteenth Amendment the Constitution subject judicial review, States) United on the facts, independent basis of both the law and only question judicial Therefore, statute. re- view this court this case whether was or supported by in the sense that it is not evi- substantial dence, order Commission is “unreasonable unlawful,” judicial basis of review case, upon supra, LaPorte which the was decided. majority opinion rule is stated as follows: “(3) stay trial For the court to within consti- jurisdiction infringe upon and not tutional another *34 government, judicial branch review order of the Public Service Commission in this case is limited to:
(a) A determination or not the order of whether (and or of the Commission is unreasonable unlawful) sup- therefore in it the sense is not ported by substantial evidence.
(b) A or determination of whether not the order is unreasonable or unlawful in contrary sense that it is to law because a vio- legal statutory principles require- lation of certain or ments or the consideration of or failure to consider apparent certain factors or elements improperly influenced the or final result order.” majority opinion, As stated in the the words “insuffi- cient, unlawful,” unreasonable and as used in the stat- seq., ute (Repl., supra) “fixing (§54-429, et Burns’ 1951 grounds only case, review this have the limited meaning specified content necessary above. This is give granting judicial order to statute review constitutional life. . . .” my understanding
It is judicial that the standard of review above announced and ap- relevant this case plies payers to both the and the rate alike. opinion is not concerned with the standard of judicial where the review issue pro- is “confiscation” or illegal curement methods,” “fraud or and I do not consider unequal it establishes judi- standards of cial review where such issues be laid before the Therefore, court. I reasoning concur in both the majority opinion. result of the Reported in 131 2d N. E. Note. —