Opinion
No. 72-198
Decided June 21, 1972.
Prohibition — Writ not available, when — To prevent an anticipated erroneous decision.
IN PROHIBITION.
This is an original action in prohibition.
The city of Mansfield seeks to prohibit the Public Utilities Commission from reopening its case No. 36,056 which fixed the rates to be charged by the United Telephone Company of Ohio for service to the city of Mansfield and several other communities in the area. The order of the commission was an approval of recommendations of the parties which were set forth in a seven paragraph "Stipulation and Recommendation" and submitted to the commission after hearings on the proposed rate increases had commenced. These rates went into effect on October 1, 1970.
On November 4, 1971, United filed an application with the commission, requesting an emergency rate increase due to its having over-estimated certain anticipated revenues in case No. 36,056. The Commission found that the emergency rate increase was not warranted, but elected to treat the application as an action to reopen case No. 36,056 and ordered United to submit a new proposed rate schedule, after which there would be a hearing.
Relator contends that there is no statutory authority for the commission to reopen a rate case except by a timely application for rehearing under R.C. 4903.10.
The commission moved to dismiss the complaint and the intervenor, United Telephone Company, moved for summary judgment. In view of our treatment of the motion to dismiss it is not necessary to consider the merits of the intervenor's motion for summary judgment.
Messrs. Steer, Strauss, White Tobias, Mr. Robert J. White and Mr. Theodore K. High, for relator.
Mr. John M. Lothschuetz, Mr. John A. Rozic and Mr. Claude M. Warren, for intervenor, United Telephone Company of Ohio.
Mr. William J. Brown, attorney general, and Mr. Thomas P. Michael, for the Public Utilities Commission.
In urging that prohibition should issue to prevent the commission from reopening this case, relator relies substantially on State, ex rel. Zielonka, v. Marshall (1918), 98 Ohio St. 467. Such reliance is misplaced as Zielonka involved a contract which was entered into by the parties and "* * * which agreement was made subject to the order and approval of the Utilities Commission." The parties here entered into stipulations and joined in a recommendation to the commission which is the rate making authority. The order of the commission did not create a contract but fixed rights, duties and responsibilities according to the statutory authority given the commission. Chapters 4905 and 4909, Revised Code.
The commission's determination as to its authority and, as well, the ultimate decision it renders with respect to any changes in the rates and charges it has already approved may be the subject of direct appeal. R.C. 4903.13. This case is unlike State, ex rel. Northern Ohio Telephone Co., v. Winter (1970), 23 Ohio St.2d 6, where prohibition issued to prevent a Common Pleas Court from exercising jurisdiction. In Winter, this court noted that "exclusive jurisdiction in such matters [is] in the Public Utilities Commission, subject to review by the Supreme Court."
The writ of prohibition does not lie to prevent an anticipated erroneous decision. State, ex rel. Dworken, v. Hopple (1933), 127 Ohio St. 573.
The motion to dismiss the complaint is sustained and the writ of prohibition is denied.
Writ denied.
O'NEILL, C.J., SCHNEIDER, HERBERT, CORRIGAN, STERN, LEACH and BROWN, JJ., concur.