Ga. Pub. Serv. Comm'n v. Atlanta Gas Light Co

• Citation: 205 Ga. 863,55 S.E.2d 618
• Decision Date: 10 September 1949
• Docket Number: No. 16732.,16732.
• Court: Supreme Court of Georgia
• Parties: GEORGIA PUBLIC SERVICE COMMISSION et al. v. ATLANTA GAS LIGHT CO.

55 S.E.2d 618

205 Ga. 863

GEORGIA PUBLIC SERVICE COMMISSION et al.

v.ATLANTA GAS LIGHT CO.

No. 16732.

Supreme Court of Georgia.

Sept. 10, 1949.

Rehearing Denied Oct. 13, 1949.

The Atlanta Gas Light Company sued the Georgia Public Service Commission and the individual members of the Commission to enjoin enforcement of orders requiring plaintiff to make retroactive adjustments and refunds to its customers.

The Superior Court, Fulton County, Walter C. Hendrix, J., overruled grounds of defendants' demurrers to petition and restrained defendants from enforcing the orders, and defendants brought error.

The Supreme Court, Almand, J., affirmed judgment, holding that action was not against the state so as to require consent of state, that the action was not barred because adequate remedy at law existed, and that the orders were void.

Wyatt and Candler, JJ., dissented.

Syllabus by the Court.

1. In an action by a gas company

against the Georgia Public Service Commission and its individual members to enjoin enforcement of orders of the commission requiring the company to make retroactive adjustments or refunds to its customers, which orders are alleged to be void by reason of a total lack of power in the commission to issue such orders, and also as being violative of specified provisions of the State and Federal Constitutions, the general ground of demurrer that such action is one against the State, to which the State has not consented, was properly overruled.

2. To such an action, a ground of general demurrer that the plaintiff had a complete and adequate remedy to test the

validity of said orders by the writ of certiorari to the superior court, or to set up their validity in an action to collect penalties for failure or refusal to obey such orders, was likewise properly overruled.

3. The Public Service Commission, in the fixing of reasonable rates and charges to be paid by the public for the service of a public utility under its jurisdiction, acts in a quasi legislative capacity. Such rates are fixed for the future, and the Commission is without power to make them operate retroactively. So, where the Public Service Commission has fixed a rate or charge to be paid by customers of a gas company for uninterruptible gas service under a schedule designated as N-4, after such customers have paid and the company has collected for such gas service according to said rate schedule, the commission has neither constitutional nor statutory power or authority, even after notice and hearing, to order the gas company to make refunds to such customers for the difference between the amounts the customers would have paid under another established lower rate for interruptible gas service known as schedule N-9 and the amounts actually paid. Consequently, the provision of the order of December 11, as amended by the order of December 22, 1948, relating to adjustments and refunds, of which provision complaint is made, is void.

4. Having held certain provisions of the December 1948, orders of the commission to be void on other grounds, it becomes unnecessary to determine whether such orders were violative of stated paragraphs of the State and Federal Constitutions.

5. The court did not err in refusing to admit in evidence certain oral and documentary evidence offered by the defendants.

6. The trial court did not err in overruling the general demurrers of the defendants, and in granting an interlocutory injunction.

This case is here on writ of error from Fulton Superior Court complaining of an order overruling general and special demurrers and granting a temporary injunction.

The case originated when Atlanta Gas Light Company filed a bill in equity against the Georgia Public Service Commission and the individual members of the commission. In substance the petition alleged that on December 11, 1948, the Public Service Commission passed an order directing the petitioner to make certain adjustments of charges to its existing customers who had purchased gas under rate schedule N-4 of the petitioner, and that this order was amended on December 22, 1948. Said orders are attached to the petition. (Further reference to these orders will be made in the opinion.) It was alleged: That the company's schedules N-4 and N-9 were duly established and fixed by the commission, and gas was sold by the petitioner to its customers. Rate N-4 makes a higher charge for gas sold than did the price provided in rate N-9. Rate N-4 customers, in favor of whom the commission ordered an adjustment of charges by its order of December 22, purchased gas from the petitioner during the entire period of time referred to in said order, and paid to the petitioner for such gas purchased under said rate. Rate N-4 was established and fixed by the commission, and customers who purchased gas under this rate executed contracts with the petitioner through the entire period of time covered by the order of December 22. It was further alleged that the effect of the so-called adjustment of charges, which the commission ordered the petitioner to make with the existing rate N-4 customers, was to order the petitioner to make refunds to those N-4 customers of a part of the sums paid by such customers to the petitioner for gas purchased by them prior to the date of the order of December 22. It was alleged that the order of December 22 was wholly void "on each and every one of the following grounds": (a) The commission had no power to order a public utility, subject to its jurisdiction, to refund any part of the price paid by a customer to the gas company for gas purchased by that customer. (b) The commission had no power to order any reparations to customers of public utilities. (c) The commission, having fixed a rate for a public utility, had no power after gashad been sold under that rate, to order retroactively that a different rate be applied to the gas purchased under the rate fixed by the commission. (d) The commission is an administrative body, and has no power to order public utilities subject to its jurisdiction to pay sums of money to its customers by way of adjustment of rates for the past or otherwise. In (e), (f), (g), (h), (i), (j), and (k), it was alleged that if any act of the General Assembly of Georgia authorizes the Public Service Commission to order the petitioner to make refunds or adjustments to its customers to whom gas was sold prior to December 22, 1948, such act is void because in violation of the provisions of art. 1, sec. 3, par. 2, art. 1, sec. 1, par. 3, and art. 1, sec. 1, par. 23 of the Constitutions of Georgia of 1877 and 1945, and of the Fourteenth Amendment to the Constitution of the United States; also that said order is violative of art. 1, sec. 3, par. 2, and art. 1, sec. 1, par. 3, of the Constitutions of Georgia of 1877 and 1945, and of the Fourteenth Amendment to the Constitution of the United States.

It was further alleged that, under section 93-416 of the Code, a public utility is subject to a penalty of $5,000 for each offense, if it shall fail, omit, or neglect to obey, observe, and comply with any order or direction of the Public Service Commission; and if it fails to make the adjustment ordered by the commission, it may be liable to a forfeiture of $5,000 for each day on which it fails to make the adjustment of charges provided for in said order. It was alleged that the order of December 22 is void, that the Public Service Commission asserts that it is valid; and that the petitioner is without adequate remedy except in a court of equity, and it files this bill for the purpose of restraining and enjoining the defendants from enforcing the order of December 22, 1948. The prayers are that the defendants be restrained from enforcing either of the orders of December 11 or December 22.

The defendants filed a general and special demurrer to the petition, the grounds of which are sufficiently indicated in the opinion and will not be set out here. The defendants assert that the order of December 22 is valid, and that the plaintiff is estopped from contending that the commission was without power to promulgate said orders. In paragraph 14 of their answer the defendants set out various orders of the commission from December 28, 1945, through December 22, 1948, dealing with the question of rate schedules charged by the plaintiff to consumers of gas under what is known as uninterruptible and interruptible schedules and designated as rates N-4 and N-9. The defendants set out extracts from orders of the commission; hearings before the commission; that the commission issued an order dated December 22, 1947, to apply retroactively the N-9 adjustment rate to these same gas consumers remaining on rate schedule N-4, "said retroactive application to be made from January 2, 1947, to November 30, 1947, provided that the N-4 gas consumer elects to contract for gas service on the N-9 rate schedule hereafter, such election to be made on or before January 15, 1948;" and that substantial refunds were made to N-4 customers who elected to transfer to N-9 schedules. It is contended that the plaintiff, having voluntarily made certain refunds under the order of December 22, 1947, was estopped to complain of the present orders. It was alleged that the adjustments in past billings for gas service ordered by the commission on December 22, 1948, are within the jurisdiction of the commission; and that, having decided that the character of service rendered by the petitioner was that provided by schedule N-9, the commission had the right to apply to that service the charge under schedule N-9, and order an adjustment of charges accordingly. It was asserted that the defendant commission had the power to make an order requiring the plaintiff to adjust its bills rendered for the service in compliance with the conditions of the rate charged, so as to cause the bills to reflect a charge for the type and character of service actually rendered. Attached to the answer as an exhibit is a list of refunds...