*1 267 P.2d 634 TEL. CO.

MOUNTAIN STATES TEL. & et

JONES al.

No. 8041.

Supreme Idaho. Court of 16, 1954. Feb.

Rehearing Denied March *2 Atty. Gen., Smylie, Leg- E. N.

Robert J. Gen., gat, Atty. Aschen- Asst. Edward J. brener, Gen., appellant. Atty. Asst. Boise, Shepherd, Nixon, Carey H. H. J. Colo., respondent.

Denver, *3 Ambrose, Meridian, curias,

Grant amicus Grange. Idaho State GIVENS, Justice. 17, respondent by

May Company, 1952 petition, applied the Public Utili- formal to approval of ties Commission for increased rates, appropriate, pertinent and for hear- 81 3, September respondent ings, 1952 result confiscation to which commenced 24, and that until March rates should be increased as seriatim continued Commission, substantially requested by respondent 1953, its or- whereupon by confiscation and authorized the increase. the col- May der of denied rates, lection increased same Company filed respondent May 1953 with the Clerk the Court un- complaint asking in the District protection $100,000 der the of a bond insur- respondent permitting mandatory injunction prompt payment by respondent ing Com- rates, charge give increased such pany damages; of all and refund to en- $1,097,000 income of additional annual titled users if the increased rates be not from interfer- appellants restrained ultimately authorized; prohibited appel- complaint The with collection. ing such lants from collections, interfering with notice, ap- directed to accompanied by was expressly but did not interfere with con- Attorney Gen- pellant Commission and the hearings tinued determination attorneys for the assistants as eral Commission of rates. ultimate May 25 at ten o’clock Commission, that temporary injunction would a. m. such complaint, though no model and sought. sketchy, general vulnerable to the demurrer, was, therefore, properly per- respondent, At that with time overruled. Kellogg Rowland v. Power & mission, complaint alleging amended its Water 40 page 223, P. 233 May 25 for a had asked the Commission 869; Corp. Staten Maltbie, Island Edison case. initial rehearing in the 296 N.Y. page 706, N.E.2d 8 complaint was to the general demurrer A 825; Depart A.L.R.2d Lowell Gas Co. v. appellants forthwith filed overruled, and Utilities, of Public ment Mass. substance of the traversing answer 811; Prendergast N.E.2d New York Tel affirmative, complaint negating and ephone Co., 466, 469, S.Ct. U.S. asserting allegations, countering substantive needed, justified, rates was no increase of should be allowed. Appellants respondent has urge prereq and exhausted administrative remedies transcript proceedings, *4 application injunction, were, uisite to its this exhibits, over the Commission for in that it did the Commission to sus admitted in evidence. not ask appellants’ objection, approved by it. 61— pend de- Sections its order and instanter made court If the specific 624 to 61-626 Code. Commis cree, reference to the Idaho finding with rates, suspended prior its appli- to sion have in effect would the rates record it increase, continued, done more. if herein has no If would for their cation have, recognizedffhat termined. That it and use- have been vain would case inters ini, non-confiscatory sug^ inability a nothing less so and collect ask there is to to damage, suspended irreparable gest rate would the Commission have result would - recoupment. impossibility because of the its rates. concepts. ex general Such are the State under such circumstanc- “Manifestly Marion Cir rel. Public Service Comm. es have been should not 888, Court, cuit 230 Ind. 100 N.E.2d 277, merely application had denied because not, way, any N.E.2d 214. didWe ** not been made to the Commission neces procedure outline or what was (for suspension).” Prendergast injunc sary to be shown justify Telephone Co., supra. York New Maltbie, County Transp. tion. Co. v. asked, Herein, rehearing granted, was 743, 906, 908. Misc. 73 N.Y.S.2d pending. and is now praecipe Appellants ex in their That confiscation not raised be was Summons, pressly did ask Sher for the fore the no raising Commission is bar return, min iff’s affidavits service equitable proceeding. herein in this Balti copy of the Notice utes A court. more & R. United States, Ohio Co. v. m., May that 1953 at ten o’clock a. re U.S. 1209. 56 S.Ct. 80 L.Ed. in spondent apply temporary a a “Assuming that there is zone herein, accompanies junction sought within which the Com- reasonableness complaint and the Decree of the Order and varying in mission is free to fix rate a Court recites: confiscatory higher than a amount rate, also the Commission is (cases) “ ** *; Summons that service of 5(a) 717d under U.S.C.A. free § [15 § copy Complaint a has been any which is not decrease rate (a)] to had each and all of Defend rate’ ”. Federal the ‘lowest reasonable herein; a copy ants named a Pipe- Natural Gas Comm. v. Power Notice that in accordance stating 62 S.Ct. U.S. line pro in such case made and the statutes 86 L.Ed. vided, would, 25, 1953, May Plaintiff A.M., Winstead, to this court apply 215 P.2d at ten o’clock Joy v. ju temporary had 291, merely staying held District Court risdiction, equity or Commission suspending either Order No. under both, specified, togeth issue a said Notice Statute, mandatory in pendente copy lite to confisca Summons and er with junction action, duly Complaint irreparable damage, ques this until the tion and on all of the Defendants finally has been served named increased rates de tion

83 80, Utilities, Public 324 Mass. 84 N.E.2d making persons herein and on other all 811, 817, supra; at proceed page Prendergast v. appearance in the personal a opposi Telephone Co., 43, 43 York 262 U.S. in New ings before Commission 853, 466, supra; Public application for in- S.Ct. 67 tion to Plaintiff’s ' Indianapolis Rys., rates, said Service of Commission v. such service creases n Notice 439; 30, 434, page 225 Ind. N.E.2d at completed at least 72 having been Corporation Pac. v. Southern the time set for this Commission days three before ; 173, 702; Co., injunction. 55 99 P.2d Baltimore Ariz. temporary a hearing for States, & Ohio R. Co. v. 298 U.S. properly the court United before The matter 80 L.Ed. 1209. purpose of the limited S.Ct. at this time for is en Plaintiff determining whether hearing, a This is not rate but an extra- pen- temporary injunction titled ordinary, emergency equity proceeding ' lite, subject to such conditions as dente pendente only purpose lite the sole and impose.” may the court temporary considering against relief Winstead, probable Therefore, contrary Joy confiscation. su- appellants’ assign- v. 61-633, pra. error, Sections 8-408 ments Code, complied with.

Idaho were Appellants largely control such curtailing expediting period by concluding interim proffer any did not While the State case, rehearing in Public Dock- Utilities summary hearing, dis evidence at the et No. U-1000-2. herein, in by the record position as shown effect, evidence no additional indicated an The issuance This considered. received sound, judi is addressed to considered restrictive. unduly prejudicially of the trial court cial discretion after a full South Public Service Comm. v. Alabama single probable issue of on con Co., 1, 42 So. & 253 Ala. Bell Tel. Tel. ern Johnson, fiscation. Shields 2d 394; Kellogg Rowland 79 P. Power & Co., page.223, 40 Idaho Water 61-633, I.C., expressly Section 869, supra. P. proceedings the Com requires justify shown to must be the is- What evidence; there introduced mission interim, temporary injunction suance of an properly they admitted. Authori were fore, been of this nature has stated accurately in pertinent, indicate deem ties, which we following cases: record, the Commission addition application for an question “While inter- bearing confis evidence locutory interested does involve a by any introduced may cation merits, Department final determination Lowell Gas Co. v. party. phone 289 U.S. S.Ct. sound involve the exercise does can L.Ed. 1036. discretion judicial That discretion. determination, “ upon a only be exercised hearing, only is not ‘This a final but and of light of the issues petition plaintiff inter- complain- presented, facts whether injunction, locutory therefore make, *6 made, failed has or has to ant complete upon proof need not as as be gravity of the showing such a of hearing. necessary is All that a final interlocutory complaint as to warrant prima plaintiff show that it is that Thus, is confisca- if the issue relief. injunction; an the facie to that entitled tion, make a fac- complainant must the plaintiff be injury to will certain and probable confisca- of showing tual the application the in- irreparable if for an with tory statute or order effect of the denied, and, injunction terlocutory be persuasiveness as to clarity such and granted, that the if the be inter- propriety the the demonstrate party, the even if injury opposing to to justice, and in order est of favor, may in its be final decree be the injury, the irreparable restraining ** adequately by indemnified bond.’ upon the hearing action until state’s inter- “‘Upon application an an The result (Cases.) can had. merits be injunction, locutory order granting inquiry into issues court’s the of the necessary case that such a it is not upon presented the the and into facts entitle as be out should made application, in to interlocutory order plaintiff to at the final hear- relief the of com- gravity as the itself to satisfy finds if the court ing. It is sufficient probable plainant’s case and the con- upon and evidence pleadings the unrestrained enforce- sequences the transac- a state of facts as makes order, be or should of the statute ment proper subject investigation tion in a statement ” by the court forth set equity.’ Service in court of Public constituting the facts and law of the Indianapolis Rys., Commission v. While that its decision. grounds of N.E.2d Ind. is not the merits and does

decision supra; findings of and the fact require not Cir., Co., Mut. Irr. v. Moreno Trautwein ap- would be of law which conclusions 374; Telephone State Tri-State F.2d hearing, the court final propriate Co., 204 Minn. 284 N.W. Telegraph & findings of fact and the should make State, Tex. 294; Gas Co. v. Lone Star appropriate law that are 681; conclusions White Coeur 279, 153 S.W.2d interlocutory proceeding.” Pub- 56 Idaho Mining Creek Big the to D’Alene 282, page 55 P.2d Tele- Comm. v. Wisconsin lic Service KEETON, Any additional evidence Justice. extend- repetition unnecessary or mere the concur with that I GIVENS Justice in the duplication already evidence ed re- order and issued should be in- issues go beyond the limited record had, ap- versed further this kind should Hearings of volved. heard. pellants opportunity to given Marathon, en- side each an endurance he holding I further in the concur other, resulting out the to deavoring wear money im- now should remain expense unnecessary to useless and right pounded Company’s to exact until Telephone Company and the patrons has am of the increase determined. been I tax-paying public.

general opinion that collections future dispensed increased rates should action, therefore, is and the reversed right Company until such time to the remanded cause with instructions exact the has to increase been Oth- shown. pre- admit evidence trial court learned erwise, I concur. proceedings, party to any sented n addition in the contained the evidence THOMAS, Justice. proceedings and exhibits before record portion dissent ma- I from that date, Commission, bring down to opinion jority gives effect and con- possible, show- reasonably as is so far *7 injunction the in force tinues full and ef- as to confiscation. ing pro and con fect, thereby permitting the collection the increased rates until a determination of the mandatory injunction, though The propriety injunction upon of the is a made will, issued, pos improvidently proper hearing. full and irreparable damage, be contin interim sible of the in the collection permitting ued injunction The should be dissolved in- the is rates under bond heretofore creased the and collected stanter funds from sub- propriety a determination of the sued until scribers refunded. upon proper a and full of the telephone company sought The in- compliance hearing trial court in by the telephone crease rates Public the

herewith, consequent ruling. Ala and Commission; upon a full hear- Utilities Comm. v. Southern bama Public Service any increase; the Commission ing, denied Co., 253 Bell Tel. & Tel. 42 So.2d Ala. immediately telephone thereafter the com- 691, supra. sought and received the dis- pany from appellants. Costs an order and decree granting a trict court injunction pendent

temporary lite author- TAYLOR, and PORTER, J., izing and con- the collection of the J., impounding C. practical all sought; cur. increased instance; and initially granted the relief hearing full in the court purposes until a below, proposed opinion must be majority increased rates which the continues the subscribers, without a full relief paid by and this force and effect is the exact the upon complete sought telephone issues even hearing company the the full and though it arbitrarily the district court. obtained and raised before was with- process due of law. discretionary power vested in the is upon An order based such a record injunctive relief in such grant court arbitrary as a and be matter of law should one; is it is a sound arbitrary cases not an moneys aside set and from collected exer- legal discretion be and which should refunded, subscribers future additional caution; requirements great cised with payments suspended a until such time as legal and sound discretion can caution hearing discloses reasonable cer- full with in- hearing; full it is only had tainty justified ground that such on the power requires deed delicate probable confiscation. caution, deliberation and abundance upon a full disclo- sound based discretion , Rehearing Petition for On with of the facts which demonstrate

sure certainty persuasiveness reasonable GIVENS, Justice. confiscation; cannot probability of support petition for- The brief in soundly caution exercised or with without held rehearing, urging that since facts on the issues hearing all relevant issued, improvidently injunction was probability joined reference to collected and the increased rates confiscation. immediately refunded, cites the opinion majority holds that the trial analyze: cases, following which we summarily telephone granting Eckert, 63 Radermacher v. company sought the relief without P.2d First Nat. Bank of Ft. Scott any evidence for and behalf Elliott, 60 Kan. 55 P. v. and State “unduly support of its State in answer was Rose, 58 N.W. N.D. 26 L.R.A. prejudicially restrictive” and hence the comparable 593, did not involve situations “improvidently issued”. point. are not in agreement; however, am With this I opinion majority Morgan, only allows effect United States U.S. *8 795, 803, from is squarely such an to attach the S.Ct. in supports point opinion issuance but continues it in full the majority date' its hearing, and effect until a full herein. That case charges force at involved fixed date, by Secretary Agriculture future is whether the packers determined some it for is,- stockyards. not it "should have been issued in the original first and The order by pro- because have the Secretary sued a final order in the was reversed entered ac- improper procedure, ceedings The before him. pending [Pro- as herein. reversed ceedings pending tion before the Pub- of the trial court herein was now improvident, (Cases.) be- .as facts lic Utilities not because the Commission.] justify the the fore The district court will thus avoid him were insufficient process of the permitting charging using risk its an instru- the as confiscation, injustice and, which full ment of with the to avoid increased opportunity on, Secretary’s passed was not but because record the proceedings it, supported including findings interested or other given was not the State contrary evidence, parties by the court have the evidence will introduce plaintiff. appropriate In for action and will showing by cited basis its made Secretary’s case, upon the of the to make its distribu- reversal able order of order, charges theretofore it tion urged accordingly.” refunded, immediately collected interpretation Our case of the -above The Court said: herein. Supported analysis by in Moun- thereof tain Tel. States Tel. & Co. v. Public Service pending “A be- proceeding is now Comm., by (cited 107 Utah 155 P.2d 184 which, Secretary as we in . fore the defendants), majority opinion in both the seen, he to determine the have is free page 189 and concurrence His de- reasonableness of the rates. Utah case ordered refund

termination, supported evidence if do because of statutes which certain we proceeding conducted made majority opinion therein have. The conformity statute and due with the that it for these concedes if were appropriate process, will afford the statutes, principle United announced action in the district court for basis supra, govern— Morgan, States v. the fund in its making distribution of opinion supports majority ren- which regard Due (Case.) custody. herein. dered discharge own of the re- court’s litigants and to the Line to the Coast Railroad Co. v. Flor- sponsibility Atlantic appropriate ida, exercise 79 L.Ed. 295 U.S. S.Ct. public payment manner as to in such restitution where considered discretion its provision policy any Act of the had been made without effectuate sys- if involved ul- administration the rates were restitution facilitate up, require non-confiscatory, timately set re- to be i. has found tem justified. by the e., the fund district that the lower rates were tention Secretary, procedural time as the mistakes of the held until such expedition, making shall the order involved with due Commission proceeding *9 88 THOMAS, J.,

were not sufficient justify restitution. dissents. restitution, but the case Court denied Rehearing denied. point not herein and is does decide the not point being because funds are here the authorizing under court order lower their restitution if non-confiscatory. found to be

are Simmons, 91 W.Va. S.

Simmons v. 189, merely the ultimate holds that on E. P.2d 113 case, there disposition and final FARMER in litigation, should be This restitution. cluding pending hearings LOOFBOURROW, Judge. District Commission, yet so concluded. has been No. Cir., Spiro, Felton v. 78 F. F.2d Davis, App.D.C.

Davis v. Supreme of Idaho. only the ef- point all, if in are 16, 1954. Feb. reg- judge did not trial fect that where the pursue authority, should ularly there al- we have

be a correct —which

ready ordered. petition support

The brief in therefore, single

rehearing, does cite proposition

authority sustains now the funds

that distribution of made. issuance underlying reason e., prevent possible injunction, i.

of this

confiscation, only perti- persists still cited, States v. Mor- authority United

nent 59 S.Ct.

gan, 307 U.S.

1211, supra, supports the continuation of pendente ordered lite. injunction J., and TAYLOR and C

PORTER,

KEÉTON, JJ., concur.