
    The City of Cincinnati, etc., v. The Public Utilities Commission of Ohio.
    
      Public utilities commission — Powers restricted to statute — Commission may not summarily fix gas rate, when-—-Municipal contract — Suspension of new ordinance — By filing referendum petition — Requirements of Section 614-16 et seq., General Code.
    
    1. The powers of the public utilities commission are conferred by-statute and it possesses no authority other than that thus vested in it.
    2. The public utilities commission is not authorized by statute to summarily fix a rate to he charged consumers of natural gas subsequent to the expiration of a contract between the public utility and the municipality served during the period within which the- operation of a new ordinance prescribing such rate is suspended by reason of the filing of a referendum petition.
    3. In the absence of an effective ordinance prescribing rates for service by a public utility, such rates should be established in accordance with the provisions of Section 614-16 et seq., General Code.
    (No. 15465
    Decided May 15, 1917.)
    Error to the Public Utilities Commission.
    
      The city solicitor of the city of Cincinnati on November 16, 1916, filed with the public utilities commission of the state an application in which it was recited that on October 3, 1916, the council of said city had passed an ordinance fixing the rate of charge for natural gas in the city of Cincinnati for a period of five years from and after November 4, 1916, which ordinance was duly approved by the mayor of said city; that The Union Gas & Electric Company which was then and theretofore furnishing gas to consumers within said city duly accepted said ordinance and agreed to abide and be bound by the terms thereof; and that on October 30, 1916, a referendum petition was filed requiring a submission of said ordinance to a vote of the people.
    By said application the public utilities commission was asked to strike from its files and records a schedule filed with it by said gas company on November 6, 1916, setting forth the rates it proposed to charge the various classes of consumers of natural gas in said city, which schedule according to its terms cancelled and superseded schedules previously filed with the public utilities commission. Such application also prayed that the public utilities commission fix and put in force an emergency rate of charge for natural gas in the city of Cincinnati during the period of suspension of operation of the ordinance passed October 3, 1916, brought about by the filing of such referendum petition.
    Upon consideration of such motion and application the public utilities commission found that it had no authority to fix and put in force an emergency rate as requested in said application, entered its finding adverse thereto, and ordered that the same be dismissed.
    Thereafter a petition for rehearing of such motion and application was filed, and the same having been denied a petition in error was filed in this court seeking a reversal of the finding and order of the public utilities commission.
    
      Mr. Charles A. Groom, city solicitor, for plaintiff in error.
    
      Mr. Edward C. Turner and Mr. Joseph McGhee, attorneys general; Mr. Freeman T. Eagleson; Mr. Lawrence Maxwell and Mr. Miller Outcalt, for defendant in error.
   Matthias, J.

The record discloses that from December 26, 1905, to and including October 26, 1916, natural gas was furnished to the city of Cincinnati and to private consumers therein by The Union Gas & Electric Company and Thé Cincinnati Gas & Electric Company at a net rate of 30 cents per thousand cubic feet, in accordance with the provisions of ordinances prescribing such rate, in operation and effect throughout that period.

Under the provisions of Section 614-44, General Code, the municipality was authorized at any time within one year prior to the expiration of its contract with the gas companies, which was October 26, 1916, to proceed under the provisions of Sections 3982 and 3983, General Code, and fix by ordinance the rate to be charged for natural gas in said city during the ensuing period, not exceeding 10 years, which upon its acceptance by the public utility would become operative unless within 60 days there was filed with the public utilities commission a complaint signed by not less than three per cent, of the qualified electors of the municipality, or unless within 30 days a referendum petition was filed as provided by Section 4227-2, Genr eral Code. Action was not taken by the council of the city until October 3, 1916, when an ordinance was passed fixing the price to be charged the city and private consumers therein at a net rate of 35 cents per one thousand cubic feet for a period of five years from November 4, 1916. 'This ordinance was duly approved by the mayor and accepted by the gas companies. No complaint of the rates thereby fixed was filed with the public utilities commission, but within the prescribed period of 30 days a petition bearing the signatures of the necessary 10 per cent, of the electors of said city, demanding a referendum on such ordinance and requiring its submission to the electors of the city at the August 1917 election for their approval or rejection, was duly filed. The filing of that petition effected a suspension of the operation of the ordinance, pending action thereon by the electors.. The result is that since November 4, 1916, no rate for natural gas prescribed by contract or ordinance has been in effect in the city of. Cincinnati. It is contended that the situation thus presented constitutes an emergency requiring the action of the public utilities commission under the provisions of Section 614-32, General Code, which is as follows:

“The commission shall have power, when deemed by it necessary to prevent injury to the business or interests of the public or any public utility of this state in case of any emergency to be judged by the commission, to temporarily alter, amend, or with the consent of the public utility concerned suspend any existing rates, schedules or orders relating to or affecting any public utility or part of any public utility in this state. Such rates so made by the commission shall apply to one or more of the public utilities in this state, or to any portion thereof as may be directed by the commission, and shall take effect at such time and remain in force for such length of time as may be prescribed by the commission.”

The powers of the public utilities commission are conferred by statute and it possesses no authority other than that thus vested in it. The provisions of the section above quoted authorize the commission, in case of any emergency to be judged by the commission, to temporarily alter or amend, or with the consent of the public utility concerned, suspend any existing rates. As we have seen, no rates prescribed by ordinance or fixed by contract were in effect subsequent to November 4, 1916. There were no existing rates to alter, amend or suspend. If there had been, then, under the provisions of Section 614-32, General Code, it would have been within the province of the public utilities commission to determine whether any emergency existed calling for the exercise of the power conferred. We are of the opinion that the commission was right in its conclusion that the condition arising from the suspension of the operation of the ordinance in question by the filing of a referendum petition does not constitute an emergency within the meaning of the law. State, ex rel. Menning, v. Zangerle, 95 Ohio St., 1.

The application of the city solicitor is in fact for an order establishing a rate. The only questions presented in this case, therefore, are whether the public utilities commission is authorized by statute to summarily fix a rate to be charged consumers of natural gas subsequent to the expiration of a contract between the public utility and municipality and during the period within which the operation of a new ordinance prescribing such rates is suspended by reason of the filing of a referendum petition, and whether its order overruling and dismissing an application therefor is unlawful or unreasonable.

The method of establishing rates for service by a public utility, when the same is not prescribed by ordinance, is provided by Section 614-16 et seq., General Code, and in accordance with the provisions of above-named section the gas company filed with the commission a schedule of rates it proposed to charge ior gas in the city of Cincinnati.

The contention of the city solicitor, that under the express provisions of Section 614-47, General Code, the public utilities act and the method of procedure therein prescribed have no application to prices and rates fixed by the council of a municipality under the provisions of Sections 3982 and 3983, General Code, overlooks the decisive fact that subsequent to November 4, 1916, there was no effective ordinance of the city prescribing rates of charge for natural gas. No authority has been conferred upon the commission by statute to suspend rates other than that heretofore commented upon. Even if complaint had been filed with the commission pursuant to the provisions of Section 614-44, General Code, and an appeal from the rates prescribed by the ordinance thus taken to the commission, under the express provisions of Section 614-45 the rates fixed by the ordinance would not by such procedure be suspended, vacated or set aside.

Under the provisions of Section 614-21 et seq., General Code, the prices and rates set forth in the schedule filed by the company may be reviewed by the commission either upon its own initiative or upon the complaint of any person, firm or corporation. This schedule is therefore properly on file with the commission. If the rate proposed be challenged, it then becomes the duty of the commission to hear the matter fully, and from a thorough investigation determine whether the rate proposed is unjust or unreasonable. Such thorough investigation would be required, particularly in view of the fact that the rate proposed in the schedule filed is the same as that prescribed by the suspended ordinance passed by the chosen representatives of the city. If the electors considered that an emergency existed calling for early action, that could have been obtained by the submission of the rate ordinance to the electors at a special election under the provisions of Section 4227-5, General Code (104 O. U, 239).

In refusing to summarily establish a new rate, effective pending action upon the referendum petition, and in overruling the motion to strike from its files the schedule of rates proposed by the gas company, the commission committed no error. Its order therefore is in all respects affirmed.

Order affirmed.

Nichols, C. J., Newman, Jones, Johnson and Donahue, JJ., concur.  