City of Birmingham v. Southern Bell Telephone & Telegraph Co.

• Decision Date: 12 June 1919
• Docket Number: 6 Div. 877
• Citation: 203 Ala. 251,82 So. 519
• Parties: CITY OF BIRMINGHAM v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO.
• Court: Alabama Supreme Court

82 So. 519

203 Ala. 251

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

6 Div. 877

Supreme Court of Alabama

June 12, 1919

Petition for common-law writ of certiorari to the Public Service Commission to certify the record in the case of City of Birmingham against the Southern Bell Telephone & Telegraph Company, and before the Supreme Court to review and revise the finding of such Commission, or, alternatively, for the establishing of a bill of exceptions and review of such order upon appeal. Denied.

James Weatherly and Frederick G. Moore, both of Birmingham, for appellant.

Hunt Chipley, of Atlanta, Ga., A.G. & E.D. Smith, of Birmingham and Steiner, Crum & Weil, of Montgomery, for appellee.

PER CURIAM.

In the Code of 1907, §§ 5632 to 5725, will be found the general law relating to the powers, duties, etc., of the railroad commission, having reference chiefly to railroads and common carriers. Code, § 5683, makes rates fixed by the commission prima facie reasonable.

In Acts 1909, p. 35, will be found an amendment to certain provisions of the act of 1907 in Code provisions, and on pages 96 to 100 provision for appeals from any action or order of the railroad commission of Alabama reducing or increasing or refusing to increase any rates, fares, or charges by common carriers for the transportation of property, freight, or passengers specifically prescribed by statute, or made the maximum rates by statute, or established by the railroad commission, to the chancery court and thence to the Supreme Court.

In Acts 1915, p. 567, the railroad commission of Alabama was given jurisdiction over rates, charges, service, and facilities of all persons, firms, and corporations engaged in or carrying on for hire the business of telephone or telegraph, either or both. In Acts 1915, p. 865, the name of the railroad commission of Alabama was changed to Public Service Commission, and its authority, powers, and jurisdiction enlarged. In section 3 of that act the commission was given exclusive jurisdiction and authority over rates and charges, with full power to regulate supervise, and control the same, of certain utilities including telephone and telegraph lines, with full provision for investigation of their affairs, etc. We find nothing in the statutes dealing with this subject which gives the right of appeal from order of said commission to the Supreme Court or providing for the obtaining or establishment of a bill of exceptions. Nor do we find any other provision of law providing for the establishment of a bill of exceptions by this court under such conditions as disclosed by the petition in question.

Bills of exception are created and regulated by statute. The statutes of Alabama (Code 1907, §§ 3016, 3022), relating to bills of exception, make it manifest that they are applicable only to judicial tribunals in judicial proceedings; the statutes clearly indicating that the bill is to be allowed and signed by the presiding judge, and if he refuses to sign a correct bill he is guilty of a misdemeanor. The Code, as amended by the act of 1915, also provides for the establishment of bills of exception by this court when the "judge" trying the case refuses to sign a correct bill, or in case of the death, absence, expiration of term of office, etc., of the "judge" before the bill of exceptions is signed. Chapter 109, p. 1027, of the Code of 1907, has no application to this case, as the right of appeal given by section 4866 is from a final judgment of any circuit court or court exercising jurisdiction of such court, and section 4867 provides for bill of exceptions only in cases covered by the preceding section.

"The supervisory power of a superior over an inferior legal tribunal by means of a common-law writ of certiorari extends only to questions touching the jurisdiction of the subordinate tribunal and the legality...