
    The Dayton Street Transit Co., Appellant, v. The Dayton Power & Light Co., Appellee.
    (Decided December 18, 1937.)
    
      Mr. Philip H. Worman and Mr. Paul H. Blum, for appellant.
    
      Mr. Edwin P. Matthews and Mr. Charles P. Pfarrer, for appellee.
   Geiger, J.

This case had its origin in the Court of Common Pleas of Montgomery county, Ohio, resulting in a finding of the court below, sustaining the demurrer of the defendant to the amended petition, on the ground that the court had no jurisdiction of the subject of the action and because the amended petition did not state facts sufficient to show a cause of action. The court further stated in its entry that, being of the opinion and finding that the defects in the first amended petition and apparent on the face thereof, could not be remedied by amendment, the court dissolved the temporary restraining order and dismissed the cause. The plaintiff below excepted to all findings of the court and gave notice of an appeal to the Court of Appeals from the final order rendered by the Court of Common Pleas on the 22nd day of June, 1937. The appeal is on questions of law.

Parties will be referred to herein -as they stood in the court below.

Upon the filing of the original petition the defendant moved to strike out numerous allegations, which motion was sustained and the plaintiff filed an amended petition which the court now considers on the question of whether the same is demurrable.

The gist of the amended petition is a complaint alleging that under a prior contract, now expired, the defendant furnished energy to the plaintiff’s then existing street car system; that the plaintiff has discarded the old systerú. and installed the new railless trolley; that for some reason unknown to the plaintiff and undiseoverable, the bills furnished by the defendant are in excess of those heretofore rendered and that the plaintiff has reserved the payment of such increase for further adjustment and that the defendant has notified the plaintiff that unless this reserve amount be paid and the current bills paid as rendered, it will cease service, to the detriment of the public and of the plaintiff. A declaratory judgment is asked of the court.

The plaintiff and defendant have both filed elaborate briefs which we have carefully examined.

Without commenting upon plaintiff’s claim in detail, we may point out the highlights thereof. First it is maintained that there never was and is not now any question or objection to the unit charge for the excessive kilowatt hours. It is only by the application of the rates to the actual increase in kilowatt hours that dollars and cents are involved and that the first question becomes: “What is the contractual relationship between the parties?” It is queried that: “If the excessive electric energy is due to some engineering cause, then on what contractual relationship can the responsibility therefor be placed?”

It is asserted that these questions were never disposed of by either party and that during the period of conferences, the defendant repudiated the last formal contract and yet relied on some of the terms thereof.

It is pointed out that the plaintiff, at the time of filing of the petition, requested a declaratory judgment of the relationship between the parties. It is maintained the rate feature was first injected by the defendant in its brief on demurrer.

It is claimed by the plaintiff first, that the grounds upon which the petition is assailed as demurrable do not appear upon the face of the petition and that it does not appear that there is any repudiation of the rate or any attempt to revise the same or any claim that it is unjust or in any way in dispute. It is admitted that power to fix rates is exclusively in the Public Utilities Commission of Ohio as is also the decision as to whether a rate is reasonable, but that the only matter involved in the petition is contractual rights. Counsel then cite a number of holdings of the commission and of the Supreme Court to the effect that the matter of contractual rights was within the jurisdiction of the court. Counsel then comment upon Section 12102-1, General Code, a section of the Uniform Declaratory Judgments Act, and assert that the matter between the parties is within the declaratory judgment powers of the court, and the claim is made that the court erred in sustaining the demurrer; that an adequate application 'for a declaratory judgment is made on the face of the petition and is within the jurisdiction of the Common Pleas Court.

Counsel for defendant filed an interesting and extensive brief, the substance of which is that all the matters of controversy are properly within the jurisdiction of the Public Utilities Commission.

The statutes relating to declaratory judgments provide that courts of record within their respective jurisdictions shall have power to declare rights and legal relations; that a person interested under a written contract or other writings constituting a contract or whose rights are affected by statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, etc., and obtain a declaration of the rights, status and other relations thereunder and that the enumeration in certain sections does not limit or restrict the exercise of the general power conferred by Section 12102-1, General Code, in any proceeding where a declaratory relief is sought in which a judgment or decree will terminate the controversy or remove an uncertainty. The application therefor shall be by petition to a court having jurisdiction to grant the relief;

Our first comment is that courts of record within their respective jurisdictions, shall have power to render a declaratory judgment and that the application therefor shall be by petition in a court having jurisdiction to grant the relief.

We are of the opinion that “within their respective jurisdictions” does not relate solely to jurisdiction over the parties, but to matters over -which the court to which the application is made has jurisdiction, irrespective of its geographical location. The provision that the application shall be to a court having jurisdiction to grant the relief draws into question the jurisdictional power, whether territorial or otherwise, of the court. A proper declaratory judgment should terminate the controversy and remove an uncertainty.

It will readily be perceived that if this court determines that the Court of Common Pleas of Montgomery county had no jurisdiction of the matter presented by the petition, it had no power to render a declaratory judgment.

We have no difficulty in disposing of the first and second paragraphs of the prayer of plaintiff’s petition asking that the court declare whether any contractual relationship exists and, if it does, to declare the obligations resulting from such contract to be performed by both plaintiff and defendant.

The petition states that on or about January 2, 1923, the parties contracted in writing for the defendant to sell and the plaintiff to buy electric energy; that the contract expired on January 1, 1933, and that there has been no formal renewal of the same, or has any new contract been created. This is a declaration by the plaintiff that the contract formerly existing has expired and not been renewed, and this declaration seems to us effectual in determining adversely to the plaintiff its right to have the court declare whether any contractual relationship exists and to declare the obligations of each, resulting from such non-existing contract.

It is true that under the Public Utility Code there is a contract upon the part of the defendant to furnish power to the plaintiff in accordance with its filed and approved schedule, and a like contract upon the part of plaintiff to pay for the same, but it could scarcely be asserted that, under the petition as framed, there is any right in the court to make a declaratory judgment as to the existence of such statutory contract or the rights of the parties thereunder. Such matters are exclusively within the purview of the Public Utilities Commission. This would leave the question whether the Court of Common Pleas, not having before it an existing contract, except so far as the same may be inferred from the fact that both parties are public utilities, and not having authority to pass upon the statutory contract existing by virtue of the Public Utilities Act in the filing of the defendant’s schedule, could, upon the allegation that the defendant threatens to and will, unless restrained, deprive the plaintiff of the necessary power to the detriment of the public and the defendant, exercise jurisdiction to restrain the defendant.

We do not feel called upon to pass upon the question as to whether the Court of Common Pleas would have jurisdiction to issue an injunction under such circumstances, or do we think it of importance at this time, as power is now being furnished and there is no present threat by the power company to withhold it.

In order to determine whether the Public Utilities Act gives exclusive control of these matters to the Public Utilities Commission, we must examine the controlling statutes. The entire enactment is embraced within Sections 487 to 614-128, General Code.

Section 487, General Code, provides that the commission shall possess the power and duties specified as well as all powers necessary and proper to carry out the purposes of the chapter.

The act includes sections which formerly were applicable to the Public Service Commission and the Bailway Commission and it is provided that the Public Utilities Commission is authorized to assume and continue as successor of the Public Service Commission.

Section 614-2, General Code, gives appropriate definitions, among which is the following:

“When engaged in the business of supplying electricity for light, heat or power purposes to consumers within this state, is an electric light company.”

Section 614-2a, General Code, provides that a public utility shall mean every corporation defined in the next preceding section with certain exceptions, not here applicable.

It is therefore clear that the defendant is a public utility.

Section 614-3, General Code, provides that the Public Utilities Commission of Ohio is vested with power and jurisdiction to supervise and regulate “public utilities” and to require all public utilities to furnish and produce and render all services exacted by the commission or by law.

The statutes above referred to and others in the public utility chapter clearly demonstrate that the Public Utilities Commission has full, plenary and, we believe, exclusive jurisdiction of all questions relating to the matters referred to in the statutes.

The Public Utilities Commission is established for the purpose of exercising exclusive jurisdiction over public utilities and their service to the public, and may make such orders as to it may seem appropriate, affecting the entire scope of operation of the utilities and their service to the public.

If we examine the petition in this case, we find that all matters complained of can be adequately reached in the Public Utilities Commission and it is quite evident that there is legislative intent that it should have exclusive jurisdiction in these matters. Were it not' so, the local courts would be clogged with public utility controversies. The commission has adequate engineering and accounting facilities to examine the controversy here set up and arrive at a proper conclusion, to be incorporated in an order of the commission, from which order appeal may be taken directly to the Supreme Court.

We are, therefore, of the opinion that the Common Pleas Court of Montgomery county has ho jurisdiction in this matter. The court below, in its opinion, correctly and concisely stated our position.

Judgment affirmed and cause remcmded for final disposition.

Barnes, P. J., and Hornbeck, J., concur.  