City of Birmingham v. Southern Bell Tel. & Tel. Co.

• Court: Alabama Supreme Court
• Writing for the Court: GARDNER, Justice.
• Citation: City of Birmingham v. Southern Bell Tel. & Tel. Co., 234 Ala. 526, 176 So. 301 (Ala. 1937)
• Decision Date: 07 October 1937
• Docket Number: 3 Div. 185
• Parties: CITY OF BIRMINGHAM v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. et al.

176 So. 301

234 Ala. 526

CITY OF BIRMINGHAM v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. et al.

3 Div. 185

Supreme Court of Alabama

October 7, 1937

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Proceeding before the Public Service Commission by the City of Birmingham against the Southern Bell Telephone & Telegraph Company. From a judgment dismissing the city's appeal to the circuit court from an order entered by the commission which intervened, the city appeals.

Affirmed.

Horace C. Wilkinson, of Birmingham, for appellant.

Steiner Crum & Weil, of Montgomery, Stokely, Scrivner, Dominick & Smith, of Birmingham, and E.D. Smith and John T. Goree, of Atlanta, Ga., for appellee Southern Bell Telephone & Telegraph Co.

Hill, Hill, Whiting & Rives, of Montgomery, for appellee, Alabama Public Service Commission.

GARDNER Justice.

Upon petition of the City of Birmingham, among others, and after a hearing and consideration of voluminous evidence, extending over a period of several months, the Alabama Public Service Commission entered an order declaring existing telephone rates unreasonable and placed in effect a schedule of rates amounting in the aggregate to a reduction of $250,000 annually, and reducing the charge for hand sets from 25 to 15 cents per month. From this order the City of Birmingham prosecuted an appeal to the circuit court of Montgomery, where the appeal was dismissed upon motion seasonably interposed.

The city's right of appeal under the broad language of the Act approved July 10, 1935 (Gen.Acts 1935, p. 624), is strenuously challenged, and the argument here for dismissal of the appeal has assumed a wide range, with varying reasons in support of the trial court's ruling.

We are persuaded the dismissal was justified upon a fundamental principle, presently to be stated, and therefore we pretermit a consideration of all other questions.

"It may be stated as a well settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction. *** Since an actual controversy is necessary, it is not within the province of appellate courts to decide abstract, hypothetical, or moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow." 4 C.J.S. Appeal and Error, § 40, pp. 117, 118.

Our decisions are in harmony with this generally accepted rule. "Ordinarily an appellate court will not entertain appeal from the results of its action when its decision will not affect any substantial right of a party in the pending matter." United States Savings & Loan Co. v. Leftwich, 132 Ala. 131, 31 So. 474, 475. "A party litigant in whose unqualified favor the decree concludes, and who can take no manner of benefit from a reversal or modification of the decree cannot appeal therefrom." Freeman v. Blount, 172 Ala. 655, 658, 55 So. 293, 294. Following this line of reasoning, the appeal was dismissed by this court in Alabama Power Co. v. City of Sheffield, 232 Ala. 53, 166 So. 797, and by the Court of Appeals in Caldwell v. Loveless, 17 Ala.App. 381, 85 So. 307.

Referring to appeals from orders of the Public Service Commission, it is provided in section 9837, Code 1923: "The appellate court shall have no power to modify said action or order appealed from, but shall either affirm or annul and vacate the same."

The order of the Public Service Commission in this cause did not render the matter of rates res judicata (51 C.J. 68), and the annulment of the order is therefore not a condition precedent to a petition before the commission for a further reduction in rates. It is apparent, therefore, that, if obedience to this statute is to be observed, neither an affirmance nor annulment of the order would result in any practical relief. And, as previously noted, it is not within the province of appellate courts to decide mere abstract, hypothetical, or moot questions, and such appeals should be dismissed.

Counsel for the city recognize the force of this statute, and vigorously argued against its constitutional validity upon the theory it constitutes an unwarranted invasion of the judicial function of the court.

We have carefully considered the many cases cited in brief in support of the invalidity of this statute upon this ground, among them the following: Otis Elevator Co. v. Industrial Commission, 302 Ill. 90, 134 N.E. 19; State ex rel. Columbia Tel. Co. v. Atkinson et al., 271 Mo. 28, 195 S.W. 741; Parkison v. Thompson, 164 Ind. 609, 73 N.E. 109, 115, 3 Ann.Cas. 677; Thoe v. Chicago, M. & St. P.R.R. Co., 181 Wis. 456, 195 N.W. 407, 29 A.L.R. 1280; In re Opinions of Justices, 251 Mass. 569, 147 N.E. 681; United States v. Klein, 13 Wall. (80 U.S.) 128, 20 L.Ed. 519; State v. Hopper, 71 Mo. 425, 431; Clapp v. Ely, 27 N.J.Law 622; Lewis v. Webb, 3 Me. (3 Greenl.) 326; Denny v. Mattoon, 2 Allen (Mass.) 361, 79 Am.Dec. 784; Vaughan v. Harp, 49 Ark. 160, 4 S.W. 751, 752; Houston v. Williams, 13 Cal. 24, 25, 73 Am.Dec. 565; DeChastellux v. Fairchild, 15 Pa. 18, 20, 53 Am.Dec. 570.

But these authorities do not deal with proceedings of the kind here involved, which are of legislative and not judicial character, and are therefore inapplicable. So considered, therefore, the statute but expresses the generally accepted rule as found stated in 51 Corpus Juris 78, as follows: "The power of the court, on appeal from an order of a public utility commission, is ordinarily merely that of affirmance or reversal of the order made, except that, when an order is separable, it may be reversed in part and in part affirmed."

As we have observed, the limitation of judicial review grows out of the character of the proceedings involved. That rate making is a legislative and not a judicial function is well established. As said by this Court in Gulf Compress Co. v. Harris, Cortner & Co., 158 Ala. 343, 48 So. 477, 481, 24 L.R.A. (N.S.) 399: "The law, we think, is too well settled to admit of doubt that the prescribing of rates for a 'public service' corporation or one 'affected with a public interest,' is a legislative, and not a judicial function. To this effect are the adjudications both state and federal." See, also, Railroad Commission v. Ala. North. Rwy. Co., 182 Ala. 357, 62 So. 749; Alabama Water Co. v. City of Attalla, 211 Ala. 301, 100 So. 490; Alabama Public Service Com. v. Mobile Gas Co., 213 Ala. 50, 104 So. 538, 41 A.L.R. 872; Alabama Power Co. v. Alabama Public Service Comm., 214 Ala. 164, 107 So. 71.

In Federal Radio Comm. v. General Electric Co., 281 U.S. 464, 50 S.Ct. 389, 390, 74 L.Ed. 969, the Supreme Court of the United States refused to review an administrative order of the Radio Commission, and dismissed the writ of certiorari. After making reference to the fact that the courts of the District of Columbia were not created under the judicial article of the Constitution, but were legislative courts, the opinion proceeds; "But this court cannot be invested with jurisdiction of that character, whether for purposes of review or otherwise. It was brought into being by the judiciary article of the Constitution, is invested with judicial power only, and can have no jurisdiction other than of cases and controversies falling within the classes enumerated in that article. It cannot give decisions which are merely advisory; nor can it exercise or participate in the exercise of functions which are essentially legislative or administrative." And in St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 56 S.Ct. 720, 725, 80 L.Ed. 1033: "The fixing of rates is a legislative act." And in Louisville & Nashville R.R. Co. v. Garrett, 231 U.S. 298, 34 S.Ct. 48, 51, 58 L.Ed. 229: "It has frequently been pointed out that prescribing rates for the future is an act legislative, and not judicial, in kind. *** It pertains, broadly speaking, to the legislative power. The legislature may act directly, or, in the absence of constitutional restriction, it may commit the authority to fix rates to a subordinate body. *** If the commission establishes rates that are so unreasonably low as to be confiscatory, an appropriate mode of obtaining relief is by bill in equity to restrain the enforcement of the order."

The division of our government into three separate departments, legislative, executive, and judicial, under section 42 of our Constitution, with the prohibition against either exercising the powers of the other, "to the end that it may be a government of laws and not of men," as provided in section 43 thereof, is discussed in Fox v. McDonald, 101 Ala. 51, 13 So. 416, 21 L.R.A. 529, 46 Am.St.Rep. 98, and State ex rel. v. Lane, 181 Ala. 646, 62 So. 31, and needs no further elaboration here.

As was observed by the Supreme Court of Oklahoma in Oklahoma Cotton Ginners' Ass'n v. State, 174 Okl. 243, 51 P.2d 327, 333, and applicable here: "The division of the government into three distinct departments, neither exercising the functions of either of the other departments, is one of the fundamental concepts of our form of government, and constitutes one of the foundation stones upon which the freedom, liberty, and rights of the citizens in the final analysis rest."

It will not, therefore, be considered that any right of appeal to the circuit court was intended to clothe that court with legislative power to fix rates. But, as observed in Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287, 40 S.Ct. 527, 528, 64 L.Ed. 908, when a commission prescribes a complete schedule of future rates, there must also be provided by the state, if the owner claims confiscation of his property will result, "a fair opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both law and...