Opinion
No. 40693
Decided April 26, 1967.
Municipal corporations — Operation of gas distribution system — Selecting supplier of gas — Public Utilities Commission — Authority to determine its own jurisdiction — Prohibition to prevent commission from exercising jurisdiction — Res judicata.
IN PROHIBITION.
This is an action in prohibition originating in this court.
Relator, city of Hamilton, seeks to prevent respondent, the Public Utilities Commission of Ohio, from considering an application filed by the Cincinnati Gas Electric Company. The facts as recited in the petition are as follows:
Relator is a municipal corporation and owns and operates a gas distribution system. Relator for many years has purchased, at wholesale, gas from the Cincinnati Gas Electric Company (CG E) for resale to consumers in Hamilton. On the 16th day of June 1965, relator, in order to obtain gas at a lower cost, filed an application with the Federal Power Commission under Section 7(a) of the Natural Gas Act, requesting that Texas Gas Transmission Company (Texas Gas) be certificated to supply relator's gas requirements.
Thereafter, CG E filed an action against Hamilton in the Common Pleas Court of Butler County, seeking to enjoin Hamilton from discontinuing its purchase of gas from CG E without first obtaining the approval of the Public Utilities Commission pursuant to the Miller Act (Sections 4905.20 and 4905.21, Revised Code). The trial court held that Hamilton could terminate its purchase of gas from CG E without approval of the Public Utilities Commission, and that the Miller Act was not applicable to Hamilton's termination of its purchase of gas from CG E. On appeal, the Court of Appeals affirmed the judgment of the trial court. CG E appealed to this court on the basis of a substantial constitutional question and on the condition that a motion to certify be allowed. Respondent, Public Utilities Commission, filed a brief, amicus curiae, in this court contending that the judgments of the lower courts were wrong. This court overruled the motion to certify and dismissed the appeal.
On or about November 29, 1966, CG E filed an application, purportedly under the Miller Act, with the commission, alleging that Hamilton intended to discontinue its purchase of gas from CG E, and that Hamilton's termination of its purchase of gas from CG E would constitute an abandonment of service within the contemplation of the Miller Act, and asked the commission to disapprove and deny such termination or abandonment.
Relator contends that the commission is about to and will, unless prohibited, hold a hearing on Hamilton's termination of its purchase of gas from CG E and the effect thereof on the public welfare and will disapprove Hamilton's termination of its purchase of gas from CG E.
Respondent has demurred to the petition.
Mr. E. Hjalmar Persson, director of law, Mr. James W. Farrell, Jr., and Messrs. Dinsmore, Shohl, Barrett, Coates Deupree, for relator.
Mr. William B. Saxbe, attorney general, and Mr. J. Philip Redick, for respondent.
The questions raised by respondent in this action were determined in the foregoing injunction case in Butler County. Relator was a party to that action and respondent, although not a party, upon appeal appeared as amicus curiae in the Supreme Court. Furthermore, the real party interested in sustaining respondent's position in this case is Cincinnati Gas Electric Company, which was a party in the Butler County case. Under such circumstances, the issue is res judicata.
The demurrer is overruled, and the writ of prohibition is allowed.
Writ allowed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.