Commonwealth Ex Rel. Town Of Ap-palachia v. Old Dominion Power Co. Inc

• Court: Virginia Supreme Court
• Writing for the Court: EGGLESTON
• Citation: Commonwealth Ex Rel. Town Of Ap-palachia v. Old Dominion Power Co. Inc, 184 Va. 6, 34 S.E.2d 364 (1945)
• Decision Date: 06 June 1945
• Parties: COMMONWEALTH ex rel. TOWN OF AP-PALACHIA et al. v. OLD DOMINION POWER CO., Inc.

34 S.E.2d 364

COMMONWEALTH ex rel. TOWN OF AP-PALACHIA et al.

v.OLD DOMINION POWER CO., Inc.

Supreme Court of Appeals of Virginia.

June 6, 1945.

184 Va. 6

Appeal from State Corporation Commission.

Proceeding by the Commonwealth, at the relation of the Town of Appalachia and others, against the Old Dominion Power Company, Inc., for reimbursement of overcharges exacted for electrical energy and injunction against enforcement of provisions of respondent's schedule of rates as to consumers residing in such town. From an order dismissing the petition, petitioners appeal.

Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

H. C. Boiling and M. M. Heuser, both of Norton, for appellants.

E. Randolph Williams and T. Justin Moore, both of Richmond, for appellee.

EGGLESTON, Justice.

On May 1, 1939, with the approval of the State Corporation Commission, the Old Dominion Power Company, Incorporated, put into effect a schedule of rates for electrical energy furnished throughout Lee and Wise counties in the State of Virginia. Under this schedule the rates for similar service were uniform throughout the territory. On July 1, 1941, the Power Company filed with the State Corporation Commission a schedule, effective on July 23, 1941, reducing its rates in certain specified parts of the territory served, and "in such other towns in which the Company owns, or hereafter acquires, a 20 year electric franchise." In the towns of Appalachia and Norton, in Wise county, the Power Company's franchises had expired, and hence under the terms of the "applicable clause" of the schedule, consumers in these localities were not entitled to the reduction in rates. On July 8, 1943, the town of Norton renewed its franchise to the Power Company and the schedule of reduced rates became effective therein.

In the meanwhile, in April, 1942, R. H. Boiling, suing on behalf of himself and all other consumers and purchasers of electrical energy sold by the company within the corporate limits of Norton and Appalachia, filed their bill in equity against the company in the Circuit Court of Wise county, alleging that the schedule of rates which became effective on July 23, 1941, was unjust and discriminatory as to the consumers in the two towns mentioned, and praying that the Power Company be required to render an accounting and to refund the overcharges exacted of them. The trial court dismissed the bill on the ground that it had no jurisdiction of the subject-matter of the suit. We dismissed the appeal taken because the jurisdictional amount was lacking. Boiling v. Old Dominion Power Co, 181 Va. 368, 25 S.E. 2d 266.

Thereupon the Commonwealth of Virginia, at the relation of the town of Appalachia and other consumers of electrical energy therein, filed a petition against the Power Company in the State Corporation Commission. In substance, it was alleged that the "applicable clause" attached to the schedule of rates which became effective on July 23, 1941, was designed to exclude the consumers of electrical energy in the town of Appalachia from sharing in the reduction of rates, was unjustly discriminatory as to them, and resulted in overcharges being made against and exacted of them from the date on which the schedule became effective.

The prayer of the petition was that the Power Company be required to ascertain and report the amounts of overcharges made and collected by it from its various customers in the town of Appalachia since the new schedule became effective; that it be required to make reimbursement to the various persons from whom overcharges had been exacted; that the "applicable clause" "be declared void ab initio, and that respondent be restrained and enjoined from further attempting to enforce the provisions thereof as to consumers who reside in the town of Appalachia."

The Power Company filed a motion to dismiss the petition on the ground that the Commission was without authority to grant the relief prayed for; that its jurisdiction was limited to the investigation and consideration of rates and the application thereof "to become effective as initial rates or in substitution of rates in effect at the time of the inquiry"; and that it had no authority to declare the rates complained of void retroactively, and no jurisdiction to require an accounting by the company for alleged overcharges made against petitioners, or to make reimbursement to them for such overcharges.

The motion to dismiss was taken under advisement. The Power Company filed an answer and evidence was adduced by both sides. In due time the Commission filed a written opinion sustaining the contention of the Power Company that it had no jurisdiction to grant the relief prayed for, and hence the petition was dismissed. From the order of dismissal the petitioners have been granted an appeal, to which they are entitled as a matter of right. Code, § 3734, as amended by Acts 1942, ch. 244, p. 354.

While the argument in the briefs has taken a wide range, the issue is really within a narrow compass.

It will be observed that the petitioners do not invoke the exercise of the jurisdiction of the Commission to inquire into existing rates and to prescribe reasonable and proper charges as a substitute for those alleged to be unjust and unreasonable. Hence, we are not here concerned with whether the consumers of electrical energy in the town of Appalachia are, by reason of the lower rates granted to other consumers in other territories, entitled to a similar reduction. That is a matter which should be addressed to the Commission in a proper proceeding filed with it for a reduction of the rates in that locality.

The question before us is whether, in the present proceeding, the Commission has jurisdiction to declare the rates, which were put into effect in the manner provided by law, and became effective on May 1, 1939, unjust and unreasonable as of July 23, 1941, when the revised schedule was put into effect, and to require the Power Company to refund to its customers in the town of Appalachia the difference between the rates collected under the schedule of May 1, 1939, and those which would have been collected under the new schedule, which, the petitioners say, should, at the same time, have been put into effect in their community? Or, to state the matter tersely, has the Commission jurisdiction to put into effect, retroactively, reduced rates applicable to petitioners, and require the Power Company to refund to them the overcharges collected of them?

We are of opinion that the Commission correctly held that it lacked the jurisdiction to grant such relief.

As was said in City of Richmond v. Chesapeake & Potomac Telephone Co, 127 Va. 612, 619, 105 S.E. 127, 129, "The commission is the creation of the Constitution, and has no inherent power. All of its jurisdiction is conferred either by the Constitution or is derived from statutes which do not contravene the Constitution."

Jurisdiction of the Commission with respect to rates and charges of transportation and transmission companies is set forth in section 156, subsection (b), of the Constitution, which reads as follows: "The commission shall have the power and be charged with the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this State, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses therein by such companies; and to that end the commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such public service facilities and conveniences as may be reasonable and just, which said rates, charges, classifications, rules, regulations and requirements, the commission may, from time to time, alter or amend."

Section 156, subsection (c), provides: "* * * The commission may be vested with such additional powers, and charged with such other duties (not inconsistent with this Constitution) as may be prescribed by law, in connection with the visitation, regulation or control of corporations, or with the prescribing and enforcing of rates and charges to be observed in the conduct of any business where the State has the right to prescribe the rates and charges in connection therewith,

Pursuant to the reserved authority under the latter subsection, the General Assembly has enacted various statutes con-ferring jurisdiction on the Commission to fix the rates, tolls and charges of public utilities operating in this State.

Code, § 4066, as amended by Acts 1924, ch. 375, p. 538, Acts 1927, Ex.Sess., ch. 36, p. 123, provides for the manner in which changes in the schedules of...