Opinion
No. 29,549.
Filed January 28, 1958.
MANDAMUS AND PROHIBITION — Order of Public Service Commission — Appeal — Pendency of Appeal — Action for Mandatory Injunction Commenced — Determination of Appeal — Moot Question — Public Interest. — Where relator had taken an appeal from an adverse judgment in H. circuit court where relator sought to vacate and enjoin enforcement of an order of the Public Service Commission and while such appeal was pending the Public Service Commission filed an action in M. circuit court requiring relator to comply with its order which had been sustained by H. circuit court, and thereafter relator filed its petition for writ of prohibition to restrain M. circuit court from proceeding therewith until the final determination of the appeal then pending alleging want of jurisdiction in M. circuit court, it is held that since the appeal has now been finally determined, the question of the jurisdiction of M. circuit court while the appeal from H. circuit court, involving the same commission order, was pending, is now moot, and a moot question will not be decided unless it involves a matter of great public interest or affects the public generally, neither of which is present in this case
Original action by State of Indiana on relation of The New York Central Railroad Company, relator, which seeks a writ of prohibition to restrain the Marion Circuit Court, and John L. Niblack, Judge thereof, respondents, from proceeding further in the action there filed by the Public Service Commission. A temporary writ was issued.
Temporary writ dissolved and permanent writ denied.
Baker Daniels, of Indianapolis, for relator.
John L. Niblack, pro se.
Relator herein was the appellant in Cause No. 29,493 in this court, on appeal from an adverse judgment in an action in the Hendricks Circuit Court wherein relator sought to vacate and enjoin enforcement of an order of the Public Service Commission of Indiana under the provisions of Acts 1929, ch. 169, § 1, p. 530, being § 54-429, Burns' 1951 Replacement.
While such appeal was pending the Public Service Commission of Indiana filed an action in the Marion Circuit Court for a mandatory injunction under the provisions of Acts 1907, ch. 241, § 17, p. 454, being § 55-127, Burns' 1951 Replacement, requiring relator to comply with its order which had been sustained by the Hendricks Circuit Court and which was the subject of the appeal then pending in this court.
Relator then filed its petition herein requesting a temporary and permanent writ of prohibition to restrain the Marion Circuit Court and the judge thereof, from proceeding further in the action there filed by the Public Service Commission of Indiana under § 55-127, supra, until the final determination of the appeal then pending in this court; and alleging as ground therefor that the Marion Circuit Court was wholly without jurisdiction to proceed with the enforcement of the order of the Public Service Commission of Indiana, the validity of which was in the process of being determined in the appeal from the judgment of the Hendricks Circuit Court.
We issued a temporary writ.
The appeal No. 29493 has now been finally determined ( 147 N.E.2d 547). Hence, the question of the jurisdiction of the Marion Circuit Court to act upon the petition of the Public Service Commission of Indiana filed under § 55-127, supra, while the appeal from the judgment of the Hendricks Circuit Court involving the same commission order was pending in this court, is now moot.
A moot question will not be decided by this court unless it involves a matter of great public interest, or it affects the public generally. C. E.I.R.R. Co. v. Pub. Serv. Comm., etc. et al. (1956), 235 Ind. 387, 390, 134 N.E.2d 55. The question here presented does neither.
The temporary writ heretofore issued will, therefore, be dissolved and a permanent writ denied.
Temporary writ dissolved and permanent writ denied.
Emmert, C.J., Landis, Achor and Arterburn, JJ., concur.
NOTE. — Reported in 147 N.E.2d 554.