City of DeWitt v. Public Service Commission

• Decision Date: 16 March 1970
• Docket Number: No. 5--5154,5--5154
• Citation: 451 S.W.2d 188,248 Ark. 285
• Parties: CITY OF DeWITT, Appellant, v. PUBLIC SERVICE COMMISSION et al., Appellees.
• Court: Arkansas Supreme Court

Page 188

451 S.W.2d 188

248 Ark. 285

CITY OF DeWITT, Appellant, v. PUBLIC SERVICE COMMISSION et al., Appellees.

No. 5--5154.

Supreme Court of Arkansas.

March 16, 1970.

Botts & Jenkins, DeWitt, for appellant.

Hubert M. Preston, San Angelo, Tex., and Tom S. Lovett, Little Rock, for appellee General Telephone Co.

Ben C. McMinn, Little Rock, for appellee Public Service Commission.

BYRD, Justice.

Appellant, the City of DeWitt, on December 2, 1965, passed an ordinance requiring all utility companies doing business within the city to maintain a business office in the city. On December 18, appellee General Telephone Company of the Southwest filed its complaint with the Public Service Commission pursuant to Ark.Stat.Ann. § 73--208(d) (Repl.1957), alleging that the ordinance was unreasonable, unjust and unlawful and, in the alternative, that the additional expense caused by the ordinance be passed on to the defendant city rather than to all telephone company subscribers. The matter was heard by the Public Service Commission on July 8 and July 19, 1968, and the final brief was submitted on Sept. 26, 1968. On Dec. 18, 1968, the Public Service Commission, with one commissioner dissenting, found that the ordinance was unreasonable, unjust and unlawful and relieved the company of any obligation to comply with the ordinance. On appeal the circuit court denied relief to the city. Here the city contends that the Public Service Commission was without jurisdiction and that the Commission order was not based upon evidence presented at the hearing.

The findings of the Public Service Commission from which the city appeals are as follows:

'5. The DeWitt business office is a two (2) employee office in which the employees handle such office operations as receipt of customer payments, answering of customer questions interpreting and applying tariffs, and reporting all such information back to the Company. The evidence revealed that seventy-five per cent (75%) of the accounts which are handled in the DeWitt business office are paid by mail. The trend is away from personal contacts by customers at that office. Small business offices with one or two employees, such as DeWitt, cause a problem for the Company's customers and for the Company because such offices cannot be well supervised; employee replacements for sickness, vacations and other absences must be brought in from other towns; proper training is difficult to keep the employees advised of current changes; and work flow cannot be properly spread over the entire month.

'6. A consolidated business office operation is more efficient because the work load can be spread out over the month and an employee can become more specialized in the handling of a certain operation. A consolidated business office operation also permits greater flexibility in the handling of sudden changes or emergency situations since more employees are available. There is better coverage from the standpoint of more employees where you have sicknesses, vacations and resignations. Better supervision and training of employees is also possible with consolidation, and this results in better servicing of the customers' needs.

'7. The testimony showed that after consolidation the DeWitt customers may pay their bills either at the DeWitt payment contractor (Schallhorn Hardware in DeWitt) or mail them to the Stuttgart, Arkansas, business office. A self-addressed return envelope is included with the customers' bills. The DeWitt payment contractor is conveniently located and its hours are longer than the business office hours, permitting more time for the customers to pay their bills. A payment contractor is a reasonable method for receiving customer payments. After consolidation, questions regarding a bill can be answered by the customers calling the consolidated office in Stuttgart toll-free. Applications for service can be made by calling the same Stuttgart telephone number toll-free. Reports by customers of service outage or service difficulties will continue to be made in the same manner as before consolidation.

'8. The testimony showed that consolidation of other business offices by the Company has not resulted in a deterioration of service and it does not appear that telephone service to the DeWitt customers will deteriorate after consolidation of the DeWitt office into the Stuttgart business office. The testimony showed that the trend in the telephone industry is toward consolidation. Such consolidation is a modern method necessary to meet changing times. It appears that the decision to consolidate the DeWitt business office operation into the Stuttgart business office operation is the result of prudent business judgment and to require the business office to be maintained in DeWitt is both unreasonable and unjust and unnecessary.'

The statute applicable here is Ark.Stat.Ann. § 73--208 (Repl.1957):

'73--208. Every city and town shall have jurisdiction, acting by ordinance or resolution of its council or commission.

(a) To determine the quality and character of, and the rates for, each kind of product or service to be furnished or rendered by any public utility within said city or town, and all other terms and conditions upon which such public utility may be permitted to occupy the streets, highways or other public places within the municipality, and such ordinance or resolution shall be deemed prima facie reasonable.

(d) Any public utility affected by any such ordinance or resolution, or any other party authorized to complain to the Department (Commission) under Section 17 (§ 73--216) hereof, may appeal from the action of said council or commission by filing, within twenty (20) days of such final action, a written complaint with the Department (Commission) setting out wherein the ordinance or resolution is unjust, unreasonable, or unlawful, whereupon the Department (Commission) shall proceed with an investigation, hearing, or determination of the matters complained of with the same procedure that it would dispose of any other complaint made to it and with like effect. * * *

(e) In all matters of which by this Act the Department (Commission) and cities and towns are each given original jurisdiction, such jurisdiction shall be concurrent and the cities and towns shall take no action with respect to any matter under investigation by the Department (Commission) until the same has finally been disposed of by the Department (Commission) and the Department shall take no action with respect to any matter which is the subject of an ordinance or resolution pending before the council or commission of any city or town until the same has finally been disposed of.

(f) That nothing in this Act shall deprive or be construed as depriving any municipality of the benefits or rights accrued or accruing to it under any franchise or contract to which it may be a party, and neither the Department (Commission) nor any court exercising jurisdiction under this Act shall deprive such municipality of any such benefit or right.'

POINT 1(a): The city here makes two arguments to show that the Public Service Commission was without jurisdiction. The first is that the ordinance passed by the city, containing an emergency clause, was not final because of the possibility of filing a referendum petition pursuant to Amendment 7 of the Arkansas Constitution. The other argument is that under the terms of the franchise between the city and the telephone company, the city had a right to prevent the telephone company from moving its business office. We find no merit in the latter argument since the franchise agreement specifically provides that, '(T)he Telephone Company shall continue to exercise its right to place, remove, construct and reconstruct * * * its plant and appurtenances as the business and purpose for which it is or may be incorporated may from time to time require. * * *' Under its first argument the city contends that even though its ordinance contained an emergency clause the ordinance did not become final, for purposes of appeal under Ark.Stat.Ann. § 73--208(e), until the 30 days for filing a referendum provided in Amendment 7 with reference to franchise agreements had expired. The city has cited no authority to support its proposition and under the record here we hold that it is estopped to deny that the matter had been finally disposed of before the city council for purposes of taking an appeal under the statute.

POINT 1(b): The city here points out that under Ark.Stat.Ann. § 73--229 (Repl. 1957), the Public Service Commission is required within 60 days after the conclusion of any hearing to file its findings and order, if any. Because of this statute it argues that the Commission was without jurisdiction to enter an order more than 60 days after the final brief was filed. We do not agree. As we interpret the statute it is directory only and non-compliance therewith does not invalidate an order of the Commission. See Mt. Konocti Light & Power Co. v. Thelen 170 Cal. 468, 150 P. 359 (1915); Fuller-Toponce Truck Co. v. Public Service Comm., 99 Utah 28, 96 P.2d 722, 725 (1939).

POINT 2(a) & (b): Under point 2(a) the city argues that every reasonable presumption must be indulged in the validity of the ordinance and that such validity can only be overcome by clear and satisfactory evidence. Based upon this argument the city contends that General Telephone Co. did not meet its burden of proof. We disagree with appellant. Ark.Stat.Ann. § 73--208(d) provides that on appeal the department shall proceed with an investigation, hearing, or determination of the matters complained of with the same procedure that it would dispose of any other complaint made to it and with like effect. In this connection we have repeatedly held that if the commission's order is supported by substantial evidence, free from fraud, and not arbitrary, it is the duty of the courts to permit it to stand even though the courts might disagree with the wisdom...