Dissenting Opinion
Sullivan, J.I respectfully dissent from the majority opinion herein. Initially, I cannot agree, as stated by the majority in its consideration “UPON THE MERITS”, that the five specifications of appellants’ assignment of errors are supportable by one argument nor in my opinion can they be treated together. Although appellants have not complied with old Rule 2-17 (h) of the Indiana Supreme Court or with new Rule AP. 8.3 (A) (7) in that they do not specifically set forth each error relied upon, for clarity I would set forth those specifications of the assignment of errors as follows:
“1. The decision, ruling and/or order of the Public Service Commission denying appellants’ request for emergency relief by suspending certain hook-on charges, or in the alternative to require Clay Utilities, Inc., to post a bond for security to guarantee the return of such charges pending final determination of the reasonableness of such charges is contrary to law.
“2. The decision, ruling and/or order of the Trial Examiner denying appellants’ request for emergency relief by suspending certain hook-on charges, or in the alternative to require Clay Utilities, Inc., to post a bond for security to guarantee the return of such charges pending final determination of the reasonableness of such charges is contrary to law.
“3. The decision, ruling and/or order of the Public Service Commission in affirming upon appeal the Trial Examiner’s decision denying appellants’ request for emergency relief by suspending certain hook-on charges, or in the alternative to require Clay Utilities, Inc., to post a bond for security to guarantee the return of such charges pending final determination of the reasonableness of such charges is contrary to law.
“4. The decision, ruling and/or order of the Trial Examiner was arbitrary and capricious in view of the fact that there was no evidence introduced in opposition to appellants’ request for emergency relief.
*647“5. The order by the Full Commission on appealing a Trial Examiner’s ruling denying appellants’ request for emergency relief was arbitrary and capricious in view of the fact that there was no evidence introduced in opposition to appellants’ request for emergency relief.”
In my view, Specifications 4 and 5 of the Assignment of Errors present nothing for the consideration of this court since they limit the error claimed to the fact that appellees brought forward no evidence in opposition to appellants’ request for emergency relief. It seems to me quite clear that the burden is upon appellants to show the Commission that there was, in fact, an emergency. In a related situation our Supreme Court in State, ex rel. Indianapolis Traction & Terminal Co. v. Lewis (1918), 187 Ind. 564, 120 N. E. 129 so held. The fact, therefore, that the utility did not oppose by evidence the claim of emergency here made, does not mean that appellants affirmatively carried their burden, as a matter of law, so as to render the Commission’s decision arbitrary and capricious.
Assignments 1 through 3, however, of the Assignment of Errors concern quite a different question. It is essential that we recognize that these three assignments claim error only insofar as the Commission did not suspend the hook-on charges, or in the alternative, require a posting of bond to guarantee refund of such charges as might be determined unreasonable. The issue of suspension of the charges is raised for the first time by appellants’ Assignment of Errors. The petition by appellant Twin City Realty Corp., which was before the Commission requested as an alternative to the posting of the bond, the “entry of an emergency order * * * amending the applicant’s schedule of rates and charges * * * by reducing the applicant’s connection charges to $2.50 per service connection * * *”. (Emphasis supplied)
In my view there is and could be no error as claimed by Twin City Realty Corp. by reason of the Commission’s failure to suspend the rates because, (1) that request for relief *648was not made before the Commission; and, (2) even if such relief had been requested there was no showing that such suspension of charges had been consented to by the utility as required by Acts 1913, ch. 76, § 122, as amended and as found in Ind. Ann. Stat. §54-712 (Burns’ 1951 Repl.), which is quoted in its entirety by the majority opinion. The controlling portion of that statute in this regard, very clearly states that the Commission may, if it judges an emergency to exist, temporarily alter or amend rates “or with the consent of the public utility concerned, suspend any existing rates * *
For the reasons hereinabove mentioned, it does not seem proper for this Court, even in the alternative, to unilaterally grant that relief requested by Twin City Realty Corp. in its intervention petition, i.e., to reduce the service connection charge to $2.50 per connection. While such relief does conform to the relief prayed for in the petition, it is wholly outside the scope of our appellate review.
Since the majority in this opinion does not concern itself with the procedural matters hereinabove treated, I will address myself to the merits and would respectfully dissent from the majority decision insofar as the alternative order of remand directs, the Commission to establish rates, even though temporarily, at a fixed amount. At the outset, I feel compelled to venture the view that the order in this respect, usurps the function of the Public Service Commission. The majority’s determination is admittedly premised upon the following conclusion:
“* * * [T]hat the rate charge was not just and reasonable and appellee’s continuation of the collection of $300 for a hook-on of water and sewage lines, plus $6.00 inspection fee for each line, is inequitable and an abuse of discretion.
“The order of the Commission of May 8, 1969, in this cause is therefore held to be arbitrary, capricious and is contrary to law.”
It is not enough that as the majority speculates, reasonable men, upon a hearing not yet held devoted to that issue, may *649determine that the utility rates are unreasonable. Whether the rates and charges here are factually unjust or unreasonable or discriminatory is. not before us. That question will be determined by the Commission at the hearing which will be held for that very purpose pursuant to the statutory provisions quoted herein by the majority. Acts 1913, ch. 76, §§ 72 and 73, as found in Ind. Ann. Stat. §§ 54-423 and 54-424 (Burns’ 1951 Repl.). These sections confer the power of determination solely upon the Public Service Commission. To be sure, that determination is judicially reviewable but not until the Commission has first had an opportunity to make its investigation and determination. The majority today usurps that function and places the burden of fixing utility rates upon this court.
Further, the majority decision erroneously directs the Commission, alternatively, in its future consideration of the final rates to be established, to fix such rates “conmensúrate with appellee’s cost related to the extension of its services”. (Emphasis supplied) Such restrictive requirement totally ignores and precludes any excess of income over cost. It should be very apparent to all that such income is vitally necessary to every business or industry, not excluding utilities, for modernization, research, service expansion, etc.
By virtue of the majority’s decision herein we indicate a willingness now and in the future to fix utility rates. We are neither technically qualified to assess the myriad factors and considerations required for the establishment of utility rates nor do we have the time to do so. As stated in In re Northwestern Indiana Telephone Co. (1930), 201 Ind. 667, 674, 171 N. E. 65:
“The courts, in reviewing the work of the Commission, must keep in mind that they only have to do with questions calling for judicial interpretation as distinguished from matters administrative. So long as the Commission keeps within the field of regulative powers over the persons or entities over which it has jurisdiction, its orders and actions with reference to such matters must be respected by the *650courts. The presumption of good faith and valid orders by the Commission must obtain until the contrary is made clearly to appear. * * * The theory of the law creating the Commission is that it shall be conscientiously and impartially administered by a body composed of a personnel especially qualified by knowledge, training and experience pertaining to the subject-matter committed to it * * *”. See also Public Service Commission v. Indiana Bell Telephone Co. (1955), 235 Ind. 1 at 19, 130 N. E. 2d 467.
Further, a proper rate which is reasonable and just cannot be determined solely by cost as it relates to the service extended to a particular consumer or consumers. The traditional, and in my view the proper standard for determining a reasonable utility rate is that which permits the production of a fair return upon the fair value of the utility’s property. Public Service Commission v. Indiana Bell Telephone Co., supra, at page 15.
My colleagues correctly state that the parties are not in dispute concerning the facts in this cause. The waters are muddied, however, by a statement that very slight evidence is required to sustain a fact when no evidence is adduced to the contrary. While such statement is undeniably true as to the sustaining of a fact, the true question before us is whether the uncontroverted facts sustain a conclusion that an emergency exists as a matter of law. Quite to the point is State, ex rel. Indianapolis Traction & Terminal Co. v. Lewis, supra, wherein the court said:
“* * * The burden was on the relator to present a case of emergency to be judged of by the commission, and if deemed by it necessary to prevent injury to the business or interests of the people or any public utility of this state, it might temporarily alter any existing rates, or, with the consent of the public utility concerned, suspend any rate then in force. * * * Under this section the commission may judge of the full scope and requirements of the emergency, its probable effects and duration, and to make such order as the exigencies of the case demand.” 187 Ind. 564, 572.
See also New York Central & St. Louis R.R. v. Singleton (1934), 207 Ind. 449 at 458, 190 N. E. 761.
*651In its sole discretion the Public Service Commission has here determined that the emergency relief requestd should not have been granted. We are not permitted to interfere with that discretionary determination unless it be shown to be arbitrary and capricious as a matter of law. Boone Co. REMC v. Public Service Commission (1959), 239 Ind. 525 at 532, 159 N. E. 2d 121.
The majority has alternatively ordered a reduction in utility charges as prayed for in appellant Twin City Realty’s petition to intervene. The court has thereby undertaken a complex duty and responsibility. The proper exercise of such duty and responsibility requires a consideration of all facts, circumstances and factors which bear upon what is or is not a fair and reasonable utility charge. Those facts, circumstances and factors are quite clearly not now available to us. Such assumption of authority by this court is, therefore, unnecessary, unwarranted and in my opinion ill-advised. If this decision is to be deemed a precedent for future review we will be called upon to fix rates and tariffs in every conceivable situation. We have neither the staff, the facilities nor the expertise to do so. We have only the authority to review rates as fixed by the Public Service Commission in the light of existing law.
The remand order permits an alternative course to be followed by the Public Service Commission in that it allows that agency to require appellee Clay Utilities, Inc., to post sufficient surety bond conditioned upon the utility’s refund to all consumers of any or all of the hook-on charges subsequently determined to be unreasonable and excessive. It was agreed by all parties to the litigation during oral argument before this court that there is no legally recognized method or procedure whereby appellant Twin City Realty Corp. could recover, retroactively, hook-on charges paid, even though the Public Service Commission may hereafter determine those charges or a portion thereof to be unreasonable and excessive. We have no reason to question this state of the law. If, there*652fore, the utility here cannot, pursuant to any statutory or common law requirement, be ordered to refund an interim over-charge, he., if the utility has no liability in this respect, I wholly fail to see any authority on our part to order or sanction a surety bond to protect against that non-existent liability.
I would confine our authority and scope of review as here-inabove set forth and would, therefore, affirm the determination of the Commission.
Note. — Reported in 257 N. E. 2d 686.