Dissenting Opinion
DeBruler, J.The relators herein, defendants below, filed a motion for summary judgment which was denied by the trial court. That motion urged that there was no subject matter jurisdiction in the trial court to entertain the plaintiffs’ claim.
*589In my view this Court should not entertain this case in an original action. Under TR. 56(E), the denial of a motion for summary judgment is specifically made appealable only as part of an appeal of a final judgment. This is a specific recognition by the Legislature and this Court that the legal interests of a party whose motion for summary judgment is denied is satisfied when such interest is permitted to be asserted only in direct appeal of the final judgment in the case. I would therefore dissent on the grounds that this petition does not state a claim upon which this Court’s original jurisdiction should be exercised.
However, in light of the majority opinion reaching the merits of petitioners’ case, I also dissent, because the petitioners have failed to sustain their burden before this Court to establish clearly that the trial court has no subject matter jurisdiction.
Petitioners claim that plaintiffs’ suit is for a redetermination of utility rates, in effect seeking a belated judicial review of a Public Service Commission order determining utility rates. It is not. Plaintiffs below do not contest the correctness of rates set, but contend that the conduct of the Indianapolis Water Company is intentionally devised to force the Public Service Commission to set rates higher than they would be if the water company kept the true value of the land within its capital structure; thereby making it available for consideration in determining what the fair rate of return should be to the investors in the company.
Petitioners claim that plaintiffs’ suit is barred by the Public Service Commission Act and the jurisdiction therein granted exclusively to the Public Service Commission. It is not. This cause of action concerns the propriety of the conduct of the public utility itself and the intentional divestment of its capital assets.
And finally, petitioners claim, and support by affidavit and records of the Public Service Commission, that the Public Service Commission “took into consideration” the sale of *590land by the Indianapolis Water Company to the Shorewood Corporation for less than the fair market value, in making its previous rate order. Nothing in the pleadings or affidavits reveals what specific use the Public Service Commission made of their knowledge of this transaction. And I do not see how the fact that the Public Service Commission took cognizance of the transaction, should serve to deny the trial court subject matter jurisdiction. In my view the petitioners’ arguments fail to satisfy their burden.
In his return respondent trial court also relies upon the following statute:
“Whenever an order has been lawfully made upon any public utility by the public service commission under the provisions of an act entitled ‘An act concerning public utilities, creating a public service commission, abolishing the railroad commission of Indiana, and conferring the powers of the railroad commission on the public service commission,’ approved March 4, 1913, or by the state board of health under the provisions of an act entitled ‘An act concerning the purity of water supplied to any city or town for domestic use,’ approved February 24, 1913, it shall be unlawful for such public utility, or any officer thereof, to pay any funds from its treasury to any other public utility for the purpose of concealing its income or assets or otherwise diverting the funds from their proper uses.” (Emphasis added.) IC 1971, 8-1-10-1, being Burns § 54-721.
This statute, supports the trial court’s jurisdiction to consider plaintiffs’ claim that the sale at less than the fair market value to Shorewood was unlawful in that it constituted a diversion of funds from the Indianapolis Water Company and for other than a proper use. The following statute authorizes any person to bring an action against a public utility for damages for unlawful acts:
“If any public utility shall do, or cause to be done or permit to be done, any matter, act or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter or thing required to be done by this act, such public utility shall be liable to the person, firm or corporation injured thereby in the amount of damages sustained in consequence of such violation: Provided, That any recovery as in this section provided shall in no manner affect *591a recovery by the state of the penalty prescribed for such violation.” IC 1971, 8-1-2-107, being Burns § 54-706.
These statutes establish the subject jurisdiction of the trial court to entertain this case, and the standing of the plaintiff rate payer to sue. Relator argues that § 54-721 is intended only to apply to a diversion of funds to another public utility. I do not believe such a narrow construction of the language is correct.
For all of the foregoing reasons, I dissent to the majority opinion and vote to deny the writ.
Note. — Reported in 307 N. E. 2d 870.