Alabama Elec. Co-op. v. Alabama Power Co.

• Decision Date: 31 July 1948
• Docket Number: 3 Div. 496.
• Citation: 251 Ala. 175,36 So.2d 530
• Parties: ALABAMA ELECTRIC COOPERATIVE, Inc., et al. v. ALABAMA POWER CO.
• Court: Alabama Supreme Court

36 So.2d 530

251 Ala. 175

ALABAMA ELECTRIC COOPERATIVE, Inc., et al. v. ALABAMA POWER CO.

3 Div. 496.

Supreme Court of Alabama

July 31, 1948

A A. Carmichael, Atty. Gen., and Silas C. Garrett, III, Asst Atty. Gen., and Marion Rushton, J. M. Williams, Jr., and Rushton, Stakely, & Johnston, all of Montgomery, for appellants.

Steiner, Crum & Weil, of Montgomery, Powell Albritton & Albritton and Robt. B. Albritton, all of Andalusia, Martin, Turner & McWhorter and J. C. Blakey all of Birmingham, and Edwin I. Hatch, of Montgomery, for appellee.

SIMPSON Justice.

This is a companion case of Alabama Electric Cooperative, Inc., v. Alabama Power Company Ala.Sup. 36 So.2d 523. Facts necessary to an understanding of this case are here reported.

This appeal is from a final judgment of the circuit court of Montgomery County issuing a writ of prohibition to W. H. Drinkard, as Director of the Department of Finance of the State of Alabama, restraining that official from undertaking, ex mero motu, a rehearing in the matter of the petition of Alabama Electric Cooperative, Inc., requesting consent of the Department of Finance to issue and deliver to the United States of America its notes in the aggregate principal amount of $5,516,600. § 155, Title 55, Code 1940. Several days previous to the issuance of the rule nisi herein, the Chief of the Division of Local Finance of the Department of Finance, after a hearing of the matter, had entered an order denying the petition of the Cooperative.

1. That the Chief of the Division of Local Finance of the Department of Finance, after taking jurisdiction of the matter, had concurrent, coordinate, and coequal authority with the Director of Finance in determining the propriety, vel non, of granting the consent of the Department of Finance to issue the notes in question and that, once his jurisdiction had attached, the Director of Finance was without power to intervene and supersede this other state officer's prerogative.

The above-noted case determined two pertinent questions:

2. That, under said § 155, necessitating the consent of the Department of Finance as a prerequisite to the issuance of said notes, the investigation of facts either by the Director or the Chief of the Local Division, as a basis of official action was not a mere ministerial duty but invoked the exercise of judgment or discretion--the usual test by which to determine whether an act is ministerial or judicial; and that 'within the class of quasi judicial acts must fall the decision as to whether or not the consent of the Department of Finance should be granted to the applicant.' Alabama Electric Cooperative, Inc., v. Alabama Power Company, supra, 36 So.2d 527.

Having thus concluded, it becomes manifest that Drinkard, as the Director, was without power of authority to order a rehearing in the case. Other reasons aside, the statute makes no provision for a rehearing, nor have any rules to that end been promulgated by the Department pursuant to any statutory authority. The order of the Chief of the Division of Local Finance was a final order in the matter after a full hearing of all the evidence bearing on the issue, and such order, not shown to have been capricious, arbitrary, fraudulent, or otherwise infected with illegality, must stand. Alabama Electric Cooperative, Inc., et al. v. Alabama Power Company, supra.

We think it fairly well settled by well reasoned authority that in the absence of proper statutory provisions, the determination by an administrative agency acting in a quasi judicial capacity as to the existence of a status rested upon a present or past set of facts cannot thereafter be altered or modified. The officer upon whom the power is conferred does not act in a purely political or administrative capacity, but of necessity acts in a judicial capacity and the procedure before him is of a quasi judicial nature. An existing final judgment or order rendered upon the merits, without arbitrariness, fraud, or collusion, by such a tribunal with competent jurisdiction, upon a matter within its jurisdiction, is conclusive of the rights of the parties, as to that tribunal, and without duly adopted rules under competent statutory authority to that end, or unless the statute authorizes a rehearing or reconsideration, any such order would be coram non judice. Olive Proration Program, etc., v. Agricultural Prorate Commission, 17 Cal.2d 204, 109 P.2d 918, 921; People ex rel. Chase v. Wemple, 144 N.Y. 478, 39 N.E. 397, 398; Lilienthal v. City of Wyandotte, 286 Mich. 604, 282 N.W. 837, 842, 843; Muncy v. Hughes, 265 Ky. 588, 97 S.W.2d 546, 549; Cress v. State, 198 Ind. 323, 152 N.E. 822, 826; Martilla v. Quincy Mining Co., 221 Mich. 525, 191 N.W. 193, 30 A.L.R. 1249; Aylward v. State Board of Examiners, Cal.App., 172 P.2d 903, 908; Little v. Board of Adjustment, 195 N.C. 793, 143 S.E. 827, 828; General Motors Acceptance Corporation v. Eaton, 24 Ala.App. 533, 534, 137 So. 780; Watkins v. Mississippi State Board of Pharmacy, 170 Miss. 26, 154 So. 277(2).

Apposite is the statement in the California Olive Proration Program case, supra, 109 P.2d 921, to wit:

'Where orders which relate to what may be rather broadly defined as individual rights are concerned, the question whether the administrative agency may reverse a particular determination depends upon the kind of power exercised in making the order and the terms of the statute under which the power was exercised. As to the first factor, almost without exception, courts have held that the determination of an administrative agency as to the existence of a fact or status which is based upon a present or past group of facts, may not thereafter be altered or modified. Muncy v. Hughes, 265 Ky. 588, 97 S.W.2d 546; Little v. Board of Adjustment, 195 N.C. 793, 143 S.E. 827; Lilienthal v. City of Wyandotte, 286 Mich. 604, 282 N.W. 837. As concisely stated by the New York Court of Appeals, 'officers of special and limited jurisdiction cannot sit in review of their own orders or vacate or annul them.' People ex rel. Chase v. Wemple, 144 N.Y. 478, 39 N.E. 397, 398. But if it is clear that the legislature intended that the agency should exercise a continuing jurisdiction with power to modify or alter its orders to conform to changing conditions, the doctrine of res judicata is not applicable. The determination depends upon the provisions of the particular statute.

'The orders here challenged were made in a proceeding authorized by the Agricultural Proration Act, supra, as a means whereby persons in an industry may exercise the rights given to them, as a group, to control the proration of their products. The statute contains no provisions in express terms giving the commission authority to change its considered determination, made after a full hearing, * * * And since all administrative action must be grounded in statutory authority, in the absence of a provision allowing a commission to change its determination, courts have usually denied the right so to do.'

The soundness of our conclusion, we think, is rested on common sense and plain logic. If the power to grant a rehearing were to...