ON THE MERITS
Flanagan, J.On May 31, 1951, the Public Service Commission of Indiana, in its cause numbered 22632, entered an order fixing certain rates to be charged by appellee, a public utility. On June 15, 1951, the appellee filed its complaint in the Marion Circuit Court, under the provisions of §54-429, Burns’ 1951 Replacement, and under the general equity powers of that court, seeking to set aside that order. The above-mentioned section reads as follows:
“Any person, firm, association, corporation, city, town or public utility adversely affected by any decision, ruling, order, determination, requirement or direction of the public service commission may commence an action in the circuit or superior court of any county in which that portion of the utility which is the subject-matter of the procedure before the public service commission operates or seeks to operate, against the commission to vacate or set aside or enjoin the enforcement of any such decision, ruling, order, determination, requirement or direction, on the ground that the same is insufficient, unreasonable, unlawful, or procured by fraud or other unlawful methods.”
The complaint charged that the order was insufficient, unreasonable and unlawful, and was procured by unlawful means, and sought an injunction to prevent? the Public Service Commission from enforcing that *345order or interfering with its charging what it alleged to be reasonable rates until reasonable rates were finally legally determined.
On June 28, 1951, the Marion Circuit Court granted an injunction, and approved a schedule of reasonable rates pendente lite. That action, upon proper procedure, reached the attention of this court and was here approved. State ex rel. Pub. Serv. Com. v. Marion C. Ct. (1951), 230 Ind. 277, 100 N. E. 2d 888, 103 N. E. 2d 214.
After the granting of the temporary injunction, a hearing was held in the Marion Circuit Court, with the result that the court held that new and additional evidence had been introduced by the Indiana Bell Telephone Company, and certified that fact to the Public Service Commission of Indiana, pursuant to the provisions of §54-436, Burns’ 1951 Replacement. This section reads as follows :
“If, upon the trial of such action, evidence shall be introduced which is found by the court to be materially different from that offered upon the hearing before the commission, the court before proceeding to render judgment, unless the public service commission shall, in writing, waive the necessity, shall transmit a copy of such materially different evidence to the commission and shall stay further proceedings in said action for fifteen [15] days from the date of such transmission. Upon the receipt of such evidence the commission shall consider the same and may, in any manner, change its decision, ruling, order, determination, requirement or direction complained of in said action, and shall report its action thereon to said court within ten [10] days from the receipt of such evidence.”
The order of transmission to the Public Service Commission was dated November 19, 1951. By order dated November 21, 1951, the Public Service Commission *346rescinded the order in controversy, being that order dated May 31, 1951, in its cause numbered 22632, and ordered a supplementary hearing to be held November 30, 1951, provided there would be dismissal of the injunction matter in the Marion Circuit Court, pursuant to the provisions of §54-437, Burns’ 1951 Replacement. This section reads as follows:
“If the commission shall so report that it has rescinded its decision, ruling, order, determination, requirement or direction complained of, the court shall thereupon dismiss the action; if the commission shall so report that it has otherwise changed its action the changed or amended decision, ruling, order, determination, requirement or direction shall take the place of the original decision, ruling, order, determination, requirement or direction complained of, and judgment shall be rendered thereon as though made by the commission in the first instance. If the original action of the commission complained of be not rescinded or changed by the commission, judgment shall be rendered upon such original decision, ruling, order, determination, requirement or direction.”
However, instead of following the provisions of the statute above set forth, the Marion Circuit Court set this case for hearing upon the request for permanent injunction, held such hearing, and entered a permanent injunction approving a schedule of rates different from those approved on the temporary injunction, and enjoining the Public Service Commission from interfering until it shall “in the manner provided by law establish and authorize proper, reasonable, and non-confiscatory rates,” etc.
The first question presented is whether the Marion Circuit Court had the power to approve a schedule of rates upon permanent injunction. We must answer that question in the negative. The Constitution of the State of Indiana provides:
*347“The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.” Article 3, Section 1.
No exception is involved in this case.
It has long been recognized that the authority to fix rates for public utilities resides in the Legislature. City of Indianapolis v. Navin (1898), 151 Ind. 139, 47 N. E. 525, 51 N. E. 80.
The administration of such regulations, under such laws as the Legislature in its wisdom adopts, belongs to the administrative department. Pub. Ser. Com. v. Ind’p’ls Railways (1947), 225 Ind. 30, 72 N. E. 2d 434. The judicial branch of the government may only interfere whenever a judicial question is involved, as, for instance, in cases of fraudulent, abritrary,
or capricious action by an administrative body. Peden et al. v. Board of Review of Cass County (1935), 208 Ind. 215, 195 N. E. 87; Warren v. Indiana Telephone Co. (1940), 217 Ind. 93, 26 N. E. 2d 399.
In the case of actions confiscatory of property, whether it be that of public utilities or others, this judicial power necessarily covers, even though an administrative decision is involved. Pub. Ser. Com. v. Ind’p’ls Railways, supra; State ex rel. Pub. Serv. Com. v. Marion C. Ct., supra.
But it must be noted that the privilege to so interfere includes the duty to make sure such interference is the very minimum necessary to judicial protection 'of the rights of the people. While we of the judiciary stoutly support our reasons for. standing guard on behalf of the rights of. our protector*348ate, we must not permit ourselves to find excuses for invading the province of those of other departments of government who equally protect our people.
Judge Bobbitt of this court, in the case of State ex rel. Pub. Serv. Com. v. Marion C. Ct., supra, clearly pointed out our proper limitation. Judge Emmert, in the same case, judicially careful, in a learned dissenting opinion, called strict attention to the possible danger. Judge Starr, in the case of Pub. Ser. Com. v. Ind’p’ls Railways, supra, specifically noted the same thing (p. 42 of 225 Ind., p. 439 of 72 N. E. 2d) :
“The fact that the trial court, on final hearing, could only set aside or enjoin the enforcement of the challenged order of June 27, 1946, has nothing to do with whether or not a temporary injunction can be ordered pendente lite.” (Our emphasis.)
The law of restricted judicial interference seems well and properly settled.
We must next make clear the practical result of this decision. It is obvious that a valid temporary injunction cannot be merged into an invalid permanent injunction. Therefore the temporary injunction stands, and the decree entered on January 30, 1952, will be considered a part of the extension of powers in the temporary injunction and becomes a part thereof. The decree now in effect is the decree of the court entered on January 30, 1952.
This matter should be returned to the Public Service Commission, with instructions to consider the new evidence and fix proper rates. As we have stated, until this is done the provisions of the temporary injunction remain in effect. We have no doubt but that the Public Service Commission will do its part. Any complaint will be subject to proper judicial review.
*349When the statute, §54-437, Burns’ 1951 Replacement, speaks of dismissal of the pending action, it refers, of course, only to the dismissal of that part of the action which involves the remedy afforded by the statute. It cannot refer to, limit, or restrain the equity powers of the court. The Marion Circuit Court retains jurisdiction to enforce the necessary features of its temporary injunction until its provisions have found completion.
Judgment reversed, with instructions for further proceedings not inconsistent with this opinion.
Note. — Reported in 108 N. E. 2d 889, and 112 N. E. 2d 751.