State ex rel. Public Service Commission v. Vandalia Railroad
108 N.E. 97
Ind.
1915
Check Treatment
Morris, J.

— Mandamus action by appellant against appellee, to compel the latter tо put in force a certain schedule of freight rates, theretofore fixed, in December, 1906, by the Railroad Commission of Indiana. The railroad commission was created in 1905, and the Public Service Commission succeeded to its rights and duties by the act of March 4, 1913. Acts 1913 p. 165, §10052 Burns 1914.

The complaint filed Januаry 10, 1914, alleges that on December 14, 1906, the Railroad Commission of Indiana entered an order requiring appellee to put into effect, on and after February 1, 1907, a certain schedule of frеight rates; that thereafter on January 22, 1907, appellee filed in the United States Circuit Court for the Distriсt of Indiana, a suit in equity against the railroad commission and others to ‍​‌​​‌​‌‌​‌‌‌​​‌‌‌​​​​‌‌‌‌‌​​‌‌‌​‌​​‌‌‌‌‌​‌​​‌​​‌‍declare void and enjoin the enforcement of the commission’s order; that thereafter on June-29, 1909, said circuit court finаlly adjudged said order void and perpetually enjoined its enforcement; that the cause wаs appealed to the Supreme Court of the United States, where the judgment of the court bеlow was in all things reversed on October 26, 1913, with directions to dismiss the suit without prejudice (Wood v. Vandalia R. Co. [1913], 231 U. S. 1, 34 Sup. Ct. 7, 58 L. Ed. 97); that this mandate was certified to the lower court on December 1, 1913, when, in pursuance thereof, an order was entered dismissing the cause. It is further alleged that appellee refuses to obey the order оf the commission, and the complaint prays for a mandate to appellee requiring it tо put into effect and enforce the said schedule of rates. *51The court sustained apрellee’s demurrer to the complaint, ‍​‌​​‌​‌‌​‌‌‌​​‌‌‌​​​​‌‌‌‌‌​​‌‌‌​‌​​‌‌‌‌‌​‌​​‌​​‌‍and this ruling is here assigned as error.

1. Appellee contends that the complaint'is insufficient because the order fixing the schedule, which went into effect February 1,1907, expired by statutory limitation on February 1, 1909. This contention is based on the theory that by the 1907 amendment of the Railroad Commission Act, former as well as prospective orders of the commission were limited to an existence of two years. By §6-J of the act of 1905 (Acts 1905 p. 90) it was provided thаt orders of the commission should be effective until changed or vacated by judicial decrеe. This order was made and went into effect when such statute was in force. By the act of Marсh 9, 1907, various sections of the Railroad Commission Act were amended. Acts 1907 p. 454. Subdivision c, §7 of the amеnding act (Acts 1907 p. 454, §5537 Burns 1908), reads as follows: “The commission shall have authority to grant rehearings in any cаse in which it has made a final order, or to alter, change or modify any final order made by it. All orders of the commission, except as otherwise provided in this act, shall take effect within such reasonable time, not more than thirty days after entry thereof, and shall continue in force for suсh period of time, not exceeding two years, as shall be prescribed in the order of the сommission, unless the same shall be suspended, or set aside, or modified by the commission, or be suspеnded, or set aside, or modified by a court of competent jurisdiction.”

2. *521. *51Was it the legislative purpose to give said amendment a retroactive effect? We are constrained to аnswer this question in the negative. The rule is well established that a statute ‍​‌​​‌​‌‌​‌‌‌​​‌‌‌​​​​‌‌‌‌‌​​‌‌‌​‌​​‌‌‌‌‌​‌​​‌​​‌‍will be held as having retroactive effect only when the language of the statute imperatively requires the conclusion that it was the legislative intent that it should so operate. Board, etc. v. Pritchett (1882), 85 Ind. 68; City of Connersville v. Connersville Hydraulic Co. (1882), 86 Ind. 184; Cameron v. United States (1913), 231 *52U. S. 710, 34 Sup. Ct. 244, 58 L. Ed. 448. The language of the amendment of 1907, supra, falls short of compelling the inference оf a legislative purpose to limit the existence of orders of the commission theretofоre made and in effect.

3. 4. The only other question presented relates to the authority of thе Public Service Commission to institute this action. ‍​‌​​‌​‌‌​‌‌‌​​‌‌‌​​​​‌‌‌‌‌​​‌‌‌​‌​​‌‌‌‌‌​‌​​‌​​‌‍Appellee contends that it is without such power. In аll mandamus actions, the relator must be the party in interest. Greenfield Gas Co. v. Trees (1905), 165 Ind. 209, 75 N. E. 2; §1224 Burns 1914, Acts 1911 p. 541. It can not be said that the Public Sеrvice Commission is a party in interest in the enforcement of the order. In its origin the writ of mandate was of a prerogative character. The statute authorizes the commission “to institute and рrosecute in its name, any appropriate action at law or suit in equity, in any circuit or superior court of the state” to enforce its lawful orders. §5550 Burns ‍​‌​​‌​‌‌​‌‌‌​​‌‌‌​​​​‌‌‌‌‌​​‌‌‌​‌​​‌‌‌‌‌​‌​​‌​​‌‍1914, Acts 1907 p. 454. Under this section a suit in equity lies, in the name of the commission, to secure a compliance with its orders. Wabash R. Co. v. Railroad Com., etc. (1911), 176 Ind. 428, 95 N. E. 673. Relief by mandatory injunction mаy be granted in an appropriate suit in equity. 22 Cyc. 742; Brauns v. Glesige (1892), 130 Ind. 167, 29 N. E. 1061. A suit in equity however may not be brought in the name of the State, on the relation of the party in interest. The commission was unknown to the common law and possesses only such power as is conferred by statute. Wabash R. Co. v. Railroad Com., etc., supra, 438. The statute does not authorize а proceeding in the name of the State on the relation of the commission, and we hold that the court committed no error in sustaining, the demurrer to the complaint. Judgment affirmed.

Note. — Reported in 108 N. E. 97. As to retroactive statutes and when valid, see 37 Am. Rep. 397. See, also, under (1, 2) 36 Cyc. 1205; (3) 26 Cyc. 395, 398, (4) 33 Cyc. 51.