How later courts described this case
- where dismissal is warranted under Civ.R. 12(B)(1) for lack of subject-matter jurisdiction, “it is inappropriate” for a court to additionally consider a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted
Written by the judges who cited it.
The opinion
Stern, J.,
dissenting. I dissent for the reason that the appellee has failed to state a justiciable cause of action in its complaint. Under R. C. 4905.04 and 4905.26, the Public Utilities Commission has jurisdiction to order gas utility service to a prospective customer. Columbia Gas of Ohio, as the successor to the gas distribution business, is required to furnish gas utility service under the easement contract,- even though appellant, Columbia Transmission, owns and operates the pipeline which supplies the gas. It is only the February 18,1976, order of the Public Utilities Commission in In re Application of Columbia Gas of Ohio, Inc.,, to Clarify Policies Relating to Gas Restrictions (case No. 75-584 GA-AGC) which prevents the granting of service, and denies appellee a superior position to other prospective users of gas utility service.
The Federal Power Commission under Section 7 of the Natural Gas Act, Section 717f, Title 15, U. S. Code also has jurisdiction to order appellant to furnish gas to ap-pellee.
The administrative restrictions upon the furnishing of gas service to the appellee are a result of the present energy crisis.
I fully recognize the rights afforded appellee under the right-of-way easement to obtain gas utility service. However, this requirement must be subordinated to the authority vested by the Congress of the United States and the General Assembly of Ohio in public regulatory agencies to direct the curtailment of gas utility services for new customers in the interest of conservation of fuel.
I would reverse the judgment of the Court of Appeals and reinstate the judgment of the Court of Common Pleas.
Celebrezze, J., concurs in the foregoing dissenting opinion. . ! i