Dissenting Opinion
Arterburn, J.I cannot concur in the reasoning or result of the majority opinion. Under the 1933 Act (Burns’ §54-719) the time within which an appeal may be taken in a “rate order” from the Public Service Commission is specifically limited to 30 days. This is a rate case.
The appellant in this case attempted to take an appeal on the 59th day under the Acts of 1929 which *249fixed a 60-day period for an appeal from any order of the commission. This 1929 Act is not applicable simply because the later Act of 1933 repealed “All acts and parts of acts conflicting with the provisions of this Act.” The 60-day period of the earlier Act of 1929 therefore conflicts with the 30-day period of the 1933 Act. It takes no acute reasoning to observe that fact. I can see no reason for discussing “implied” repeal in the majority opinion. It is one of expressed repeal since the last act on the subject involved (rate order) repeals “All acts and parts of acts conflicting ...” therewith. Implied repeals are raised only by reason of no expressed repealing clause.
“Repeals by implication are not favored; . . . But, if the two (acts) are repugnant in any of their provisions, the later act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first;” (Our italics.) De Haven v. Municipal City of South Bend (1937), 212 Ind. 194, 198, 7 N. E. 2d 184.
Unless we consider the 1933 Act dealing with “rate orders” as repealing the procedure dealing with that subject matter in the earlier 1929 Act we run into innumerable complications which are irreconcilable. For example: The 1929 Act permits the appeal to be taken in any county in which the utility operates; the 1933 Act limits jurisdiction to the county where the utility is located or in the Superior Court of Marion County. The earlier statute makes no provision for a written opinion by the trial court; the later Act requires one. The 1929 Act fixes a time of 90 days for appeal to the Supreme Court; the 1933 Act reduces this to 30 days. Under the general procedures of the 1929 Act there is no prohibition against the trial court’s enjoining temporarily the collection of the higher rates which might be allowed by a Commission order, and there is no pro*250vision requiring that the utility be permitted to collect the higher rates under the old schedule should the Commission order a reduction; the 1933 Act permits the utility to collect the higher rate during the period required for review. In effect, the majority opinion merely construes the 1933 Act as supplemental to and not as repealing any part of the Acts of 1929 in the face of the repealing clause in the 1933 Act.
Where one act deals generally with a subject matter and another act makes specific provisions with parts of the same general subject matter, the specific act prevails to the extent of such conflict. Home Owners’ Loan Corp. v. Wise (1929), 215 Ind. 445, 19 N. E. 2d 737.
In the case of Griffin Telephone Corp. v. Public Service Com’n. (1956), 236 Ind. 29, 138 N. E. 2d 150, we stated with reference to these same two Acts:
“As the two Acts are obviously in conflict in their application to the case before us, we are called upon to determine whether appellant could properly proceed in the court below pursuant to the 1933 Act, as it has attempted to do.
“Such act being valid and applicable to the procedure for obtaining a review of rulings of the Public Service Commission in rate cases, it follows that appellant’s complaint seeking a review under the 1933 Act was sufficient as against appellant’s motion to dismiss, . . . . ”
A second reason why the appellant should not succeed in this appeal is the failure to allege facts showing the jurisdiction of the Vanderburgh Circuit Court. Under the 1933 Act which applies exclusively to rate cases, appellants must allege and be able to prove that the utility is located in Vanderburgh County. No attempt is made to allege such fact and meet the require*251ments of the 1933 Act. The 1929 Act requires an allegation that a portion of the utility operates in the county. Even if we assume the 1929 Act is applicable, the complaint does not meet that requirement. The closest it comes is the following statement:
“All the plaintiffs herein and many of their members who reside in Evansville, Vanderburgh County, Indiana and other counties in Southwestern Indiana and many of whom are farmers who own and/or operate farms in Southwestern Indiana, are consumers and ratepayers of said Southern Indiana Gas and Electric Company and are adversely affected by said order of the Public Service Commission.”
The mere allegation that some of the plaintiffs “reside in.....Vanderburgh County .... and other counties .... many of whom are farmers who own and/or operate farms in Southwestern Indiana” and “are consumers and ratepayers” is not an allegation that they received the service at their residence in Vanderburgh County. As the allegation quoted above reveals, the plaintiffs could reside in Evansville, Van-derburgh County, and still be consumers and ratepayers as farmers in “other counties in Southwestern Indiana.” Definite and certain allegations are necessary to invoke the jurisdiction of the Vanderburgh Circuit Court in this case.
Where a special statutory action is brought, all jurisdictional averments must appear in the complaint. This is true in the case of a complaint for a divorce; a statutory action against railroads for killing or injuring live-stock; actions for election recount and contests, to name but a few. Ballman v. Duffecy (1952), 230 Ind. 220, 102 N. E. 2d 646; White v. Bd. of Med. Regis. and Exam. (1956), 235 Ind. 572, 134 N. E. 2d *252556; Lowe’s Revision of Works’ Indiana Practice, Vol. 1, §§13.19 and 13.21.
In State ex rel. Ayer v. Ewing (1952), 231 Ind. 1, 106 N. E. 2d 441, this court has said:
“We are safe in saying that in any special statutory proceedings whatever, all jurisdictional aver-ments required by the statute under which the proceeding is based must be contained in the petition or the court in which it is filed, as well as any court to which it may come on change of venue or appeal will be without jurisdiction in the case, except to enter an order dismissing the case.” (Our italics)
In Griffin Telephone Corp. v. Public Service Com’n. (1956), 236 Ind. 29, 138 N. E. 2d 150, the issue arose as to whether “appellant’s complaint shows on its face that it is jurisdictionally defective as there is no allegation in appellant’s complaint that the portion of the utility, which was the subject matter of the procedure before the Public Service Commission, operates or attempts to operate in Marion County where the suit was brought.” It was there held that a motion to dismiss would properly raise that question.
The majority opinion, in order to place the jurisdiction in the Vanderburgh Circuit Court, in reality inserts in the complaint the words:
“that those who resided in Evansville received electrical service of the Southern Indiana Gas and Electric Company at their place of residence.”
The complaint does not say that and therefore does not even meet the requirements of the Acts of 1929.
If words may be added to a pleading by a court to invoke jurisdiction in a statutory proceeding and if' statutory clauses repealing all laws in conflict may be *253ignored, then it may be done in other cases and sets a dangerous precedent.
When this case goes back for retrial on appeal from a rate order of the commission, in fairness to the trial court we ask which procedure must the trial court follow: Acts 1929 or 1933? May the trial court enjoin collection of higher rates pending an appeal although prohibited under the Acts of 1933? Must the trial court render an opinion in writing as required under the Acts of 1933? If an appeal is taken to the Supreme Court, is the time limited in rate cases to 30 days as fixed by the 1933 Act or 90 days as fixed by the earlier Act of 1929?
The mere fact that both the Acts of 1933 and 1929 were repealed by the last legislature does not warrant giving them now an interpretation which violates well established principles of statutory construction. The principles invoked by the majority opinion in this case will establish a precedent which I fear will arise innumerable times in the future to plague us, and create uncertainty in the law of statutory construction.
Emmert, C. J., concurs in dissent.