L. S. Ayres & Co. Et Al. v. IPALCO Et Al. ( 1976 )

Opinion Concurring in Part, Dissenting in Part

Sullivan, J.

The holdings of the majority opinion are contained in Parts III through XX thereof. It is to these parts that

I address my separate opinion, but would note that Parts I and II of the majority opinion are identical with Parts I and II of City of Evansville v. Southern Indiana Gas & Electric Co. (1975), 167 Ind. App. 472, 339 N.E.2d 562 and I would therefore reaffirm the “Preliminary Statement” contained in my separate opinion in that case. 339 N.E.2d 595-596.

I concur in Parts III, V, VII, VIII, X, XII, XIII, XIV, XV, XVII, XVIII, XIX and XX. My views with respect to Parts IV, VI, IX, XI and XVI are hereinafter set forth.

IV.

JURISDICTIONAL NOTICE

I agree that the Commission had jurisdiction to issue its rate order. I do not however agree with the majority’s categorization of the statutory notice requirements as “jurisdictional”, in the sense of subject matter jurisdiction. To be sure, failure of notice or defective notice gives rise to due process questions and might render an administrative order void, but it is inaccurate, I believe, to cloak the question in jurisdictional garb. But see City of New Haven v. Indiana Suburban Sewers, Inc. (1972), 257 Ind. 609, 612-13, 277 N.E.2d 361 at 362-363. Even if the requisite statutory notice by publication be considered truly jurisdictional, once given, such publication confers jurisdiction which is not lost by the granting of a continuance and a failure to publish a new notice. See City of New Haven, supra. ......

In any event, all intervenors in this proceeding and the Public Counselor appeared and participated in the hearing held on the date set by the continuance order. Intervenors were therefore not prejudiced by any lack of notice. City of New Haven v. Indiana Suburban Sewers, Inc., supra.

VI,

TEST YEAR REVENUES

I dissent from the express holding of the majority that the Commission did not err by excluding testimony regarding the number of revenue producing ratepayers on May 1, 1971. That holding is sought to be supported, at least in part, by the statement that “[t]he testimony would establish a going level adjustment outside the test year which was not known within the test year.” I am unable to place any significance upon this statement because the prehearing order authorizing pro forma adjustments established the test as “known, fixed and measurable” within twelve months of the test year — not “known, fixed and measurable” within the test year itself.

The very purpose of test years and pro forma adjustments is to reflect the future as accurately as possible. When future needs, revenues etc., are clearly and accurately establishable, such evidence should be admitted. The majority says precisely this at pages 33-87 of its opinion. Such evidence should be admitted even if, in order to do so, the prehearing order relative to the permissible period for pro forma adjustments must be modified.

In any event, the prehearing order here permitted adjustment with respect to accounting and financial matters within twelve months of June 30, 1970. The evidence excluded concerned service and revenues as of May 1, 1971 — within the authorized twelve month period.

As we said in City of Evansville, supra:

“The Public Service Commission Act imposes no requirement that the data utilized by the Commission be wholly derived from historical information, On the contrary, the Act invests the Commission with broad discretionary authority to formulate the accounting systems and adjustmént methods best suited to its particular needs [citation omitted] . . . We must reject the city’s assertion, that the adoption of an adjustment method allowing the usé of estimated data is not reasonably related to the Commission’s primary objective of obtaining the most accurate representation of petitioner’s future operations. The expert use of estimates is an integral part of the rate process.” 339 N.E.2d at 574.

Certainly, if estimates of future revenues and expenses are permissible, evidence which fixes such revenues and expenses with greater degree of certainty is appropriate, if not essential. Accordingly, I would reverse the Commission on this issue.

IX.

USED AND USEFUL DIRECT CURRENT

The majority places significance upon the fact that termination of direct current service was to occur after 12 months from the end of the test year. I do not. As discussed under Issue VI, adjustments are proper if “known, fixed and measurable” within the 12 month period following the end of the test year. Such is the case here.

XI.

DEFERRED TAX EXPENSE RESERVE

Subject to the reservations which I expressed concerning certain dictum in City of Evansville, supra, 339 N.E.2d at 598,1 concur in the remand to the Commission for reconsideration of this issue.

XVI.

RATE CASE EXPENSE

I dissent.

The mere fact that “in recent rate cases of other public utility companies before us we have generally approved a 4-year period for the amortization of rate case expense”, (Commission Finding No. 8) is insufficient basis for the Commission to conclude “that period to be appropriate in this case”.

As stated in my separate opinion in City of Evansville, swpra, 339 N.E.2d at 596 “material issues, in my estimation, include those involving ‘policy’ determinations as well as those which are purely factual so long as reasonable policy application depends upon the presence or absence of certain varying factual considerations. We therefore must have a basis, whether it be evidentiary or a statement of policy reasons by the Commission; before we can determine, as we must, that the rate order is reasonable under the law.”

Note. — Reported at 351 N.E.2d 814.