
    City of Columbus, Appellant, v. Public Utilities Commission of Ohio et al., Appellees. (Two cases.)
    (Nos. 36267 and 36268
    Decided December 2, 1959.)
    
      
      Mr. Russell Leach, city attorney, Mr. John W. E. Bowen and Mr. Alba L. Whiteside, for appellant.
    
      Mr. Mark McElroy, attorney general, Mr. Herbert T. Maher and Mr. Andrew R. Sarisky, for appellee Public Utilities Commission of Ohio.
    
      Mr. Garrett 8. Claypool, Messrs. Porter, Stanley, Treffinger d Platt, Messrs. Squire, Sanders d Dempsey, Mr. John Lansdale and Mr. Donn B. Miller, for appellee Columbus & Southern Ohio Electric Company.
   Zimmerman, J.

It has long been established that the Public Utilities Commission is strictly an administrative board governed by the statutory enactments creating it and prescribing its operations. Among the functions of the commission, in a proceeding properly brought before it and after investigation and hearing, is the determination of charges and rates which may lawfully be collected by a public utility in furnishing its products or services to the publie.

The Publie Utilities Commission is a branch of the state government and it is to be assumed that it will act with fairness and impartiality in respect to all persons and matters coming within its jurisdiction.

Presumptively, at least, rates or charges as determined by the commission are fair and reasonable, and a party who contends otherwise has the burden on appeal of showing that they are unjust, unreasonable or unlawful. City of Cincinnati v. Public Utilities Commission, 151 Ohio St., 353, 86 N. E. (2d), 10.

The second paragraph of the syllabus in Lindblom v. Board of Tax Appeals, 151 Ohio St., 250, 85 N. E. (2d), 376, reads:

‘ ‘ There is no right of appeal from a decision of a statutory board or a judgment of a legally constituted court except as provided by statute.”

Such statement has been quoted with approval in several later cases decided by this court. See A. DiCillo & Sons. Inc., v. Chester Zoning Board of Appeals, 158 Ohio St., 302, 304, 109 E. E. (2d), 8, 9: Miller v. Bureau of Unemployment Compensation, 160 Ohio St., 561, 563, 117 N. E. (2d), 427, 428; and State, ex rel. Michaels, v. Morse et al., Industrial Commission, 165 Ohio St., 599, 606, 138 N. E. (2d), 660, 665.

It is said in 73 Corpus Juris Secundum, 1147, Public Utilities, Section 64a:

“The orders of a public utility or similar commission are subject to such judicial review, by appeal or otherwise, as is authorized by constitutional or statutory provisions; but any right to appeal from or obtain a judicial review of the orders or regulations of a public utility commission is founded wholly on constitutional or statutory provisions, it does not exist except in a case within a provision therefor, and in the absence of any provision therefor no such right exists. Consequently, the orders and regulations of a commission may be reviewed only by such court and may be reviewed only in such manner as may be prescribed by constitution or statute, and the power of review conferred on the courts may be exercised only on the conditions and within the limits thereby established.”

The statutes of Ohio provide the method of appealing from final orders of the Public Utilities Commission to this court. Section 4903.13, Revised Code, reads:

“A final order made by the Public Utilities Commission shall be reversed, vacated, or modified by the Supreme Court on appeal, if, upon consideration of the record, such court is of the opinion that such order was unlawful or unreasonable.

“The proceeding to obtain such reversal, vacation, or modification shall be by notice of appeal, filed with the Public Utilities Commission by any party to the proceeding before it, against the commission, setting forth the order appealed from and the errors complained of. * * #”

Section 4903.15, Revised Code, recites:

“Unless a different time is specified therein or by law, every order made by the Public Utilities Commission shall become effective immediately upon entry thereof upon the journal of the Public Utilities Commission. * * *”

Then, Section 4903.16, Revised Code, declares:

“A proceeding to reverse, vacate, or modify a final order rendered by the Public Utilities Commission does not stay execution of such order unless the Supreme Court or a judge thereof in vacation, on application and three days ’ notice to the commission, allows such stay, in which event the appellant shall execute an undertaking, payable to the state in such a sum as the Supreme Court prescribe's, with surety to the satisfaction of the Clerk of the Supreme Court, conditioned for the prompt payment by the appellant of all damages caused by the delay in the enforcement of the order complained of, and for the repayment of all moneys paid by any person, firm, or corporation for transportation, transmission, produce, commodity, or service in excess of the charges fixed by the order complained of, in the event such order is sustained.” (Emphasis supplied.)

By this latter section any stay of an order of the commission is dependent on the execution of an undertaking by the appellant, and the appellant herein is the city of Columbus which is unwilling to furnish an undertaking in more than a nominal amount. Our examination of the controlling statutes fails to disclose any provision whereby an appellee may be required to furnish an undertaking upon a stay sought by the appellant.

Patently, Section 4903.16, Revised Code, was designed primarily to apply to a public utility which is dissatisfied with the rates or charges as ordered by the Public Utilities Commission.

Sections 4903.17, 4903.18 and 4903.19, Revised Code, relate back to Section 4903.16 and are of no assistance to the appellant city in what it now seeks.

The case of Keco Industries, Inc., v. Cincinnati & Suburban Bell Telephone Co., 166 Ohio St., 254, 141 N. E. (2d), 465, recently decided by this court, has relevancy here. There it is said in the opinion, at page 258:

“ * * * under the statutes of Ohio the utility has no choice but to collect the rates set by the order of the commission, in the absence of a stay of execution pursuant to Section 4903.16, Revised Code. We have determined further that the General Assembly provided that there is no automatic stay of any order, but that it is necessary for any person aggrieved thereby to take affirmative action, and if he does so he is required to post bond.”

Since appeals from final orders of the Public Utilities Commission of Ohio are governed solely by statute and there is no statute providing for the stay of a final order of the commission fixing rates or charges collectible by a public utility unless the appellant furnishes an undertaking, this court is of the opinion that the applications of the appellant city for stay must be denied.

As to the alternative relief requested by the city, the applications therefor must also be denied. As we have hereinbefore pointed out, appeals from the Public Utilities Commission of Ohio are governed solely by statute, and there is no statute which requires that, during the pendency of an appeal from the order of the commission granting an increased rate, the utility must impound the increase collected or post bond to insure reimbursement to its consumers in the event the rate should be ultimately lowered. Frankly, we sympathize with the city’s position, but the absence of legislation supporting it impels the conclusion reached.

Applications denied.

Tart, Matthias and Peck, JJ., concur.

Weygandt, C. J., Bell and Herbert, JJ., dissent.

Herbert, J.,

dissenting. The majority opinion, setting forth the reasons for denying the applications of the city of Columbus for stay of execution of the order of the Public Utilities Commission of Ohio, fixing new increased rates to be charged by the Columbus & Southern Ohio Electric Company to its consumers in the city of Columbus, or in the alternative to require a bond from the utility conditioned in effect for the repayment of all charges collected in excess of reasonable rates ultimately established, appears to be bottomed on the proposition that there is no statute covering the situation presented here.

In one sense, we do not take issue with that proposition. In another sense, we believe there is sufficient inherent power in this court to require what the city here alternatively requests. Both sides concede that this court has authority to grant a stay under the provisions of Section 4903.16, Revised Code, quoted in the majority opinion. An examination of this statute shows that this court is not confined in its discretion in prescribing the sum to be fixed in the bond undertaking of an appellant. The latter part of the section clearly shows, however, that the conditioning of the bond for repayment of moneys paid in excess of the charges fixed by the order appealed from contemplates only an appeal by a utility from an order reducing rates. As admitted in the majority opinion, this section was designed primarily to apply to a public utility which is dissatisfied with the rates or charges ordered by the commission. There appears to be no comparable statute where a municipality appeals from an order of the commission fixing higher rates.

Under Section 2505.12, Revised Code, the state and political subdivisions are exempted from the requirements of an appeal bond. The electric company here contends that this provision is not applicable to an appeal from an order of the Public Utilities Commission under Section 4903.13, Revised Code. The majority of the court accept this contention as shown in paragraph three of the syllabus and the discussion in the opinion.

Not desiring to belabor the point, I must differ with the majority opinion that Section 4903.16, Revised Code, is exclusively controlling. In my opinion Section 2505.12, Revised Code, should be read in pari materia with Section 4903.16, Revised Code. With such an interpretation, this court could then stay the operation of the order pending final decision, without bond by the appellant or with only a nominal bond.

The majority opinion also disposes of Sections 4903.17, 4903.18 and 4903.19, Revised Code, as being related back to Section 4903.16 and, therefore, of no assistance to the appellant city in what it now seeks. The first sentence of Section 4903. 19, Revised Code, provides as follows:

“Upon the final decision by the Supreme Court upon an. appeal from an order or decision of the Public Utilities Commission, all moneys which the public utility or railroad has collected pending the appeal, in excess of those authorized by such final decision, shall be promptly paid to the corporations or persons entitled to them, in such manner and through such methods of distribution as are prescribed by the court.”

The difficulty of applying the above-quoted sentence to these particular cases lies in the fact that, should the rates authorized by the order appealed from here be ultimately held to be unreasonable and unlawful, this court would not attempt to fix lower rates in its decision but would remand the cause to the commission for that purpose.

All the sections under consideration here (with the exception of Section 2505.12) were originally enacted in 1913 as part of the act to create the Public Utilities Commission of Ohio and have remained in substantially the same form ever since. See 103 Ohio Laws, 804.

If these three sections, 4903.17, 4903.18 and 4903.19, are, as stated in the majority opinion, applicable only to cases instituted under Section 4903.16, then we would have to concur in the conclusion that the statutes are silent as to á method of appeal by a municipality where the Public Utilities Commission has granted increased rates to a utility.

It is the view of the writer, however, that the Legislature never intended to handicap in this manner a municipality seeking to protect its citizens who are consumers of public utility products, and, therefore, the proposal of the city here seems uniquely appropriate to the situation presented. If the provisions of Section 2505.12, Revised Code, are applicable, then a public utility could find itself in the predicament either of facing an order staying execution with a nominal bond fixed within the discretion established in Section 4903.16, Revised Code, or of meeting the alternative which is proposed by the city here, namely, that of filing its bond conditioned to ultimately repay any excesses collected over rates ultimately found to be the lawful rates. Of course, at this stage of the proceeding, no one knows what the ultimate outcome will be as to rates. Should the order of the commission ultimately be found to be reasonable and lawful, there would, of course, be no refund required. But on the other hand, should this court remand the cause to the commission for a readjustment of rates downward, and such lower rates so ordered be ultimately held to be reasonable and lawful, there would apparently be no way by which the consumers who have paid the rates now being collected could.be reimbursed for the interim involved. With the decisions in these cases, the problem of providing appeal procedures adequate to fairly protect all parties affected by an order of the commission now moves to the Legislature for solution.

Weygandt, C. J., and Bell, J., concur in the foregoing dissenting opinion.  