DISSENTING OPINION Under the law of Indiana the municipality of Huntington in 1914 acquired full power to own and operate a public utility. The fact that the operation of a utility is treated by the law of this state as a non-governmental function does not change the fact that the municipality of Huntington acquired the legal power to engage in the business of operating the utility. I do not believe that this power can be lost by non-users. The fact that public officials of Huntington did not immediately proceed in the business of furnishing electric power to private individuals can not be utilized by the appellee as a legal ground for forfeiture of such power by the municipality of Huntington. To allow the contention of appellee in this case runs counter to the general rule that prescriptive rights can not be acquired against the State or its political subdivisions, and the corollary that the failure of officials to take action to assert rights or powers of the State or *Page 522 its subdivisions can not be taken advantage of to acquire prescriptive rights by private individuals.
The power of a municipal corporation to own and operate a public utility belongs to it as a political subdivision of the state; and the quality of the power is not different from the power to carry on strictly governmental activities. The classification of municipal functions into governmental and non-governmental has been used chiefly as a basis for relieving municipalities from liability for negligence of agents; but the considerations therein involved afford no logical basis for the conclusion that a municipal corporation can lose rights or powers by non-user even though these relate to non-governmental functions.
Furthermore, courts have no power to grant indeterminate permits to persons or corporations, private or municipal, to engage in the business of a public utility. Nor do they have power to revoke such permits either directly by adjudicating a cause for revocation or indirectly by adjudicating a forfeiture. If cause for forfeiture exists the only tribunal which has jurisdiction legally to determine the existence of that cause is the Public Service Commission of Indiana, subject only to the limited judicial review allowed by law. The Public Service Commission has not entered any order of revocation of the indeterminate permit which the Commission granted to the city of Huntington; and in the absence of such revocation the Huntington Circuit Court had no power to enjoin the city of Huntington from acting as a public utility. *Page 523