Bosley v. Dorsey

• Decision Date: 20 July 1948
• Docket Number: 198.
• Citation: 60 A.2d 691,191 Md. 229
• Parties: BOSLEY et al. v. DORSEY.
• Court: Maryland Court of Appeals

60 A.2d 691

191 Md. 229

BOSLEY et al. v. DORSEY.

No. 198.

Court of Appeals of Maryland

July 20, 1948

Appeals from Circuit Court of Baltimore City; John T. Tucker, Judge.

Action by Philip H. Dorsey, Jr., People's counsel before the Public Service Commission of Maryland, against Charles B Bosley and others constituting the Public Service Commission of Maryland and another, involving public utility rates. From an order overruling demurrers defendants appeal.

Reversed and bill dismissed.

Philip H. Dorsey, Jr., of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, and HENDERSON, JJ.

DELAPLAINE Judge.

The issue in this case is whether the People's Counsel has the statutory privilege to appeal from an order of the Public Service Commission of Maryland.

Philip H. Dorsey, Jr., People's Counsel, filed the bill of complaint in the Circuit Court of Baltimore City against Charles B. Bosley, Arthur H. Brice and Thomas Elmo Jones, constituting the Commission, and Consolidated Gas Electric Light and Power Company. He alleged that in November, 1945, the Commission found the fair value of defendant company's property for rate-making purposes to be $148,376,143, and ordered the income to be calculated on a unified rate base, rather than a separate rate base for each of the three lines of utility business, gas, electric light and steam for heating purposes. Appeals from that order were heard jointly by the Circuit Court; but, on motion of the Commission, the Court remanded the testimony, and the Commission reopened the investigation. In November, 1946, the Commission announced that it would revise the rates in the light of changed conditions, which had produced a decrease in earnings from gas and an increase in earnings from electric operations, but that it would not relinquish calculation on a unified rate base. On December 30, 1946, the Commission found the fair value of the company's property to be $145,243,978, and approved increases in gas rates to amount to $2,500,000, and ordered the company to submit revised electric rate schedules for domestic and commercial use and industrial power sufficient to reduce the charges to the extent of $3,650,000. The company submitted revised schedules and the People's Counsel protested against them. He claimed that the electric rate for industries is the lowest on the Atlantic seaboard, while the gas rate will greatly increase the combined cost of gas and electric services to hundreds of thousands of domestic and commercial consumers. Nevertheless, the Commission on January 28, 1947, approved the schedules. The People's Counsel asked the Court to set aside the order of December 30, 1946, and direct the Commission to find a separate rate base for each of the three lines of utility business. He claimed that the order deprives the consumers of due process of law and equal protection of the laws.

The Commission and the company demurred to the bill on the ground that the People's Counsel has no right under the statute to appeal from an order of the Commission. The Court overruled the demurrers, and from that order defendants appealed to this Court.

The Public Service Commission Law provides: 'Any company, corporation, association, person or partnership subject to any of the provisions of this sub-title, or other person or party in interest, shall have the right to proceed in the courts to vacate, set aside or have modified any order of said Commission on the grounds that such order is unreasonable or unlawful, as hereinafter more particularly set forth.' Laws of 1910, ch. 180, sec. 11, Laws of 1927, ch. 354, Code 1939, art. 23, sec. 359.

The statute further provides: 'Any corporation subject to this sub-title, or any of the provisions of this sub-title, and any person in interest being dissatisfied with any order of the commission, fixing any rate or rates, tolls, charges, schedules, joint rate or rates, or any order fixing any regulations, practices, acts or service, may commence any action in the Circuit Court for any county, or before any judge of the supreme bench of Baltimore City, in any court of Baltimore City of appropriate jurisdiction which may be adopted for the purpose, against the commission as defendant to vacate and set aside any such order on the ground that the rate or rates, tolls, charges, schedules, joint rate or rates, fixed in such order is unlawful, or that any such regulation, practice, act or service fixed in such order is unreasonable, in which action a copy of the complaint shall be served with the summons.' Laws of 1910, ch. 180, sec. 43, Code 1939, art. 23, sec. 415.

The inquiry in this case, therefore, is whether the People's Counsel is a 'person in interest' within the contemplation of the statute. It is elementary that a complainant, in order to sustain his bill in equity, must show an interest in the subject matter and a right to institute the suit. If such interest and righ to sue are not shown by the bill itself, the bill is demurrable. Sellman v. Sellman, 63 Md. 520, 522. Ordinarily an attorney is not a party to a suit in which he merely acts in a professional capacity in representing a litigant. Pressman v. Elgin, Md., 50 A.2d 560, 169 A.L.R. 646. It is generally accepted that an attorney retained to prosecute or defend an action has no implied authority to prosecute an appeal from a judgment or decree affecting the interests of his client. National Park Bank of New York v. Lanahan, 60 Md. 477, 515; Tobler v. Nevitt, 45 Colo. 231, 100 P. 416, 132 Am.St.Rep. 142, 180, 23 L.R.A.,N.S., 702 16 Ann.Cas. 925; Fidelity & Deposit Co. v. Madson, 201 Wis. 609, 231 N.W. 170, 70 A.L.R. 832; Union Bank & Trust Co. v. Penwell, 99 Mont. 255, 42 P.2d 457. In this case the People's Counsel does not contend that he is injuriously affected by the order of the Commission. He claims that he has the right to appeal as an agent for the persons affected.

The original Act of the Legislature, approved by Governor Crothers in 1910, did not make provision for a People's Counsel. It authorized the Governor, upon the recommendation of the Commission, to appoint a General Counsel to the Commission, and provided that the assistant or assistants appointed by the General Counsel should perform such duties as he might prescribe. Laws of 1910, ch. 180, secs. 2, 6. In 1912 the Legislature increased the duties of the General Counsel. The Act required the General Counsel, whenever directed by the Commission (1) to participate in the preparation or reforming of the pleadings before the Commission or investigation of facts or evidence upon which an application, complaint or protest is or may be based, and (2) to appear before the Commission on behalf of the public or in defense of the public interests. Laws of 1912, ch. 563. After the approval of this Act by Governor Goldsborough April 11, 1912, Wm. Cabell Bruce, General Counsel, delegated Albert C. Ritchie, his assistant, to appear before the Commission on behalf of the people. Thereafter Mr. Bruce called Mr. Ritchie the 'People's Counsel,' (Report of Public Service Commission for 1913, 537, 538) although the Legislature had not yet given that title to the office.

In 1921 the Maryland Reorganization Commission found that the Department of Law was the legal adviser of all State departments except the Public Service Commission, which had needed its own counsel because of the specialized character of its legal work; but since many of the questions concerning the Commission's jurisdiction and powers had been settled by judicial decisions, it recommended to Governor Ritchie and the members of the Legislature (1) that the office of General Counsel to the Public Service Commission be dispensed with, and its duties be taken over by the Department of Law, and (2) that the People's Counsel be appointed by the Governor. Plan of Md. Reorganization Commission, 43, 44. The bill to reorganize the State Government was introduced in the Legislature at its 1922 session; but, in recognition of Mr. Bruce's valued services as General Counsel from the time of the establishment of the Commission, the Legislature declined to abolish the office at that session, although it abolished the office of Assistant General Counsel and transferred all of the functions of that office to the People's Counsel, to be appointed by the Governor. Laws of 1922, ch. 29, art. 13. Mr. Bruce resigned his position in August, 1922, and the Legislature at its next session abolished the office of General Counsel and directed the Attorney General to act as the legal adviser of the Public Service Commission. Laws of 1924, ch. 534. That arrangement, however, remained in effect only three years, for in 1927 the office of General Counsel was restored. Thus, under the existing law, the General Counsel is appointed by the Governor upon the recommendation of the Commission. Laws of 1927, ch. 201, Code Supp. 1947, art. 23, sec. 347.

In Gregg v. Public Service Commission, 121 Md. 1, 32, 87 A. 1111, 1114, the first test of the Public Service Commission Law, the Court of Appeals held that, while the statute did not use the word 'appeal' in connection with the right to challenge an order of the Commission, the rights of any parties aggrieved by any action of the Commission were fully safeguarded by the provision that any corporation subject to the statute and 'any person in interest being dissatisfied with any order' may commence a suit against the Commission. Appeals from an order of the Commission may be taken either by a regulated public utility or by any individuals or corporations having an interest adversely affected by the order. Public Service Commission v. Byron, 153 Md. 464, 471, 138 A. 404.

It is conceded that...