The opinion
Concurring Opinion
Achor, J.
I agree that we cannot properly establish an unequal standard of judicial review in utility rate cases, with one standard applicable to the utility and another to the rate payer. However, I do not consider that the majority opinion authorizes such a double standard. Nor do I consider the rule formerly announced by the court in the case of Public Service Commission v. City of LaPorte (1935), 207 Ind. 462 , 193 N. E. 668 , to be repudiated.
In this case the rate fixing order of the Public Service Commission was attacked as “unreasonable and unlawful.” There was no allegation or contention of “fraud or other unlawful methods” as provided by §54-429, et seq., Burns’ 1951 Repl. Neither was the rate challenged as being “confiscatory” and therefore unconstitutional (under Art. 1, §21 of the Constitution of Indiana and the Fourteenth Amendment to the Constitution of the United States) and subject to judicial review, on the basis of both the law and the facts, independent of any statute. Therefore, the only question for judicial review by this court in this case was whether or not in the sense that it is not supported by substantial evidence, the order of the Commission is “unreasonable or unlawful,” which was the basis of judicial review upon which the LaPorte case, supra, was decided.
The rule is stated in the majority opinion as follows:
“(3) For the trial court to stay within its constitutional jurisdiction and not infringe upon another *112 branch of the government, the judicial review of the order of the Public Service Commission in this case is limited to:
(a) A determination of whether or not the order or finding of the Commission is unreasonable (and therefore unlawful) in the sense that it is not supported by substantial evidence.
(b) A determination of whether or not the order of the Commission is unreasonable or unlawful in the sense that it is contrary to law because of a violation of certain legal principles or statutory requirements or the consideration of or failure to consider certain factors or elements which it is apparent improperly influenced the result or final order.”
As stated in the majority opinion, the words “insufficient, unreasonable and unlawful,” as used in the statute (§54-429, et seq., Burns’ 1951 (Repl., supra) “fixing the grounds of review in this case, have only the limited content or meaning specified above. This is necessary in order to give such statute granting a judicial review constitutional life. . . .”
It is my understanding that the standard of judicial review above announced and relevant to this case applies to both the utility and the rate payers alike.
The opinion is not concerned with the standard of judicial review where the issue is “confiscation” or procurement by “fraud or illegal methods,” and I do not consider that it establishes unequal standards of judicial review where such issues may be laid before the court. Therefore, I concur in both the reasoning and result of the majority opinion.
Note. — Reported in 131 N. E. 2d 308 .