CONCURRING OPINION I agree that the judgment of the trial court should be reversed. However, I reach this conclusion from different and opposite reasoning from that of the majority. In their opinion it is stated:
"Although the appellee raised no such question below, it having merely asserted by its answer that the agreement constituted a lease which had been renewed for five years, it now for the first time insists that the Public Service Commission has sole jurisdiction to determine the question presented because, it says, the appellant is a public utility as defined by our statutes, and only the Public Service Commission would ultimately have the right to determine `whether the appellant could cut off the water supply in question.'"
I am of the opinion the question of whether appellant was a public utility was presented to the court below by the contract, the pleadings and the evidence. *Page 111
Rhetorical Paragraphs V, VI and VII of appellant's complaint are as follows:
"V. That the plaintiff has repeatedly notified the defendant orally that its water supply is inadequate for its own use and that it would no longer be able to furnish water to the defendant, and has repeatedly asked that defendant arrange for its own water supply so that it may use its supply of water for its own exclusive use.
"VI. That the plaintiff is still furnishing water to the defendant but threatens to and will cut off the supply of water, and asks for a determination of its rights under its agreement with the defendant, which the defendant alleges is still in force and effect.
"VII. Plaintiff avers that the defendant's failure to arrange for its own water supply still exists and the plaintiff desires to have determined the rights and duties of plaintiff and of defendant, under said contract, as stated in plaintiff's `Exhibit A,' and to have the court interpret and declare the true meaning of said contract in the following respect. Under the terms and provisions of said contract does an obligation rest upon the plaintiff to furnish water to the defendant, and is said contract fully performed and terminated?"
Rhetorical Paragraph 3 of appellee's answer is as follows:
"3. That the defendant denies the allegations set forth in Paragraphs IV, V, VI, VII, and VIII, except that the defendant admits that the plaintiff has heretofore furnished water to the defendant, but the defendant furthermore contends that said lease set forth as a part of Plaintiff's complaint was renewed for a term of five years, beginning June 1, 1946."
The evidence shows appellee was a public utility operating under the Public Service Commission; that appellant did not have a permit from that Commission. *Page 112
Our statutes have defined the terms "public utility," "service" and "utility." Section 54-105, Burns' 1933 (1947 Supp.), provides, in part, as follows:
"The term `public utility' as used in this act shall mean and embrace every corporation, company, individual, association of individuals, their lessees, trustees, or receivers appointed by any court whatsoever, that now or hereafter may own, operate, manage or control any street railway or interurban railway or any plant or equipment within the state for the conveyance of telegraph or telephone messages, or for the production, transmission, delivery or furnishings of heat, light, water or power, or for the furnishing of elevator or warehouse service either directly or indirectly to or for the public, but said term shall not include a municipality that may now or hereafter acquire, own, or operate any of the foregoing facilities."
"The term `service' is used in this act in its broadest and most inclusive sense and includes not only the use or accommodation afforded consumers or patrons but also any product or commodity furnished by any public or other utility and the plant, equipment, apparatus, appliances, property and facility employed by any public or other utility in performing any service or in furnishing any product or commodity and devoted to the purposes in which such public or other utility is engaged and to the use and accommodation of the public."
"The term `utility' as used in this act shall mean every street railway or interurban railway, and every plant or equipment within the state used for the conveyance of telegraph and telephone messages, or for the production, transmission, delivery, or furnishing of heat, light, water or power, or for the furnishing of elevator or warehouse service, either directly or indirectly to the public." (My emphasis).
The provisions of the contract herein, to my mind, bring appellant squarely within the foregoing definitions of a "public utility" and a "utility." *Page 113
In the case of Public Service Commission et al. v. PanhandleEastern Pipeline Company (1947), 224 Ind. 662, 71 N.E.2d 117, the Supreme Court, in considering the question of whether the appellee in that case was a public utility, after quoting the first portion of the statute set out above, said, in part (pp. 685, 686):
"The bottom question on this phase of the case is whether the appellee is furnishing gas in Indiana directly or indirectly to or for the public. Admittedly it is selling gas in Indiana indirectly to and for the public through distributing companies and that makes it a public utility under the Indiana statute, subject to regulation and control by the Indiana Public Service Commission."
In this case the contract clearly indicated its sole intent and purpose was to induce appellant to furnish and deliver water to appellee to be used by said appellee in serving the public. The evidence at the trial is undisputed that appellee is a public utility supplying water to the people of Mt. Summit, to the school building, and eight fire hydrants. This water is supplied exclusively by appellant.
Section 54-509, Burns' 1933 (1947 Supp.), provides, in part, as follows:
"No public utility, as defined in section one (§ 54-105) of this act, shall sell, assign, transfer, lease, or encumber its franchise, works or system to any other person, partnership or corporation, or contract for the operation of any part of its works or system by any other person, partnership or corporation, without the approval of the commission after hearing. . . . It shall be lawful, however, for any utility to make a contract for service to or from another utility at rates previously filed with and approved by the public service commission and in force." *Page 114
I am of the opinion this provision of the Public Service Commission Act places contracts of the kind involved here under the control of the Public Service Commission. Any such contract not made in accord with this provision is illegal and invalid. Otherwise such contracts could afford an effective means of circumventing the clear and positive legislative intent expressed in the Act.
I recognize the Hancock Circuit Court is a court of general jurisdiction. Under the Uniform Declaratory Judgments Act it has jurisdiction to interpret and construe valid contracts, including contracts between public utilities. However, I do not believe that court has authority under the last mentioned Act to construe invalid contracts. Therefore, I do not believe the trial court had jurisdiction of the particular subject-matter of this litigation.
MARTIN, J. — Concurs.
NOTE. — Reported in 84 N.E.2d 207.