Georgia Power Co. v. Allied Chemical Corp.

• Citation: 233 Ga. 558,212 S.E.2d 628
• Decision Date: 28 January 1975
• Docket Number: No. 29180,29180
• Parties: , 8 P.U.R.4th 176 GEORGIA POWER COMPANY v. ALLIED CHEMICAL CORPORATION et al.
• Court: Supreme Court of Georgia

Page 628

212 S.E.2d 628

233 Ga. 558, 8 P.U.R.4th 176

GEORGIA POWER COMPANY v. ALLIED CHEMICAL CORPORATION et al.

No. 29180.

Supreme Court of Georgia.

Jan. 28, 1975.

Rehearing Denied Feb. 18, 1975.

Troutman, Sanders, Lockerman & Ashmore, Carl E. Sanders, Tench C. Coxe, Norman L. Underwood, David W. Pollard, Atlanta, for appellant.

Sutherland, Asbill & Brennan, James P. Groton, Edward J. Grenier, Jr., Alfred C. Aman, Jr., Atlanta, Larry W. Thomason, David Schlissel, Decatur, Robert J. Castellani, Atlanta, for appellees. Syllabus Opinion by the Court

HALL, Justice.

Eighteen corporate users of electrical power supplied by the Georgia Power Company filed an equitable suit in the Fulton Superior Court against the Georgia Public Service Commission and the Georgia Power Company. The complaint sought an injunction against orders of the commission on the grounds that the rate structure was unreasonable and the increase in the annual revenue which the utility was authorized to collect from its customers, that is, the rate level, was unreasonably high. The Georgia Power Project and the Atlanta Labor Council intervened as additional plaintiffs. The Georgia Power Company filed a motion to dismiss the complaints for failure to state a claim upon which relief could be granted. The trial court overruled the motion and certified the question for review. The issue here is whether consumers of electricity supplied by a public utility have standing to seek to enjoin the enforcement and collection of rates set by an order of the Georgia Public Service Commission on the ground that the level of these rates is unreasonably high. We answer this question 'No'.

1. The Georgia Constitution and laws impose a duty on the Georgia Public Service Commission to make 'just and reasonable rates,' and at the same time provide that the determination of 'what are just and reasonable rates and charges is vested exclusively in the Public Service Commission.' Code § 93-309; see also Code Ann. § 2-2703, Const. art. IV, § IV, par. 3. 'Utility rate-making is legislative in nature . . .' Southern Bell Tel. & Tel. Co. v. Georgia Public Service Commission, 203 Ga. 832(5), 49 S.E.2d 38. '(W)hen the commission establishes a rate, such act is legislative in character, and binds all parties concerned int he same manner as if the rate had been fixed by an act of the General Assembly.' Georgia Public Service Commission v. Atlanta Gas Light Co., 205 Ga. 863, 883, 55 S.E.2d 618, 630.

What is a 'just and reasonable rate' is basically a matter of policy. ¹ It involves an intelligent estimate of present and probable future values and is at best an approximation. Holmes has said that 'All values are anticipations of the future.' Lincoln v. Commonwealth, 164 Mass. 368, 378, 41 N.E. 489, 491.

Recognizing that rate-making is essentially a legislative function, we must determine to what extent judicial review of the legislative decision is available at the instance of the utility company or of the consumer.

A public utility has standing to challenge a rate schedule on the ground that the schedule is so low that it is confiscatory and denies the utility substantive due process. Southern Bell Tel. & Tel. Co. v. Georgia Public Service Commission, 203 Ga. 832, 49 S.E.2d 38, supra. The rate set must reach the point of confiscation for the utility to show a legally protected interest. St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 56 S.Ct. 720, 80 L.Ed. 1033; Georgia Power Co. v. Georgia Public Service Commission, 231 Ga. 339, 201 S.E.2d 423. On the other hand, a consumer has standing to challenge a rate schedule on the ground that the schedule discriminates against the consumer or a class of consumers in violation of the equal protection guarantees of the state and federal constitution. Gas Light Co. v. Georgia Power Co., 225 Ga. 851 171 S.E.2d 615. ² But the consumer's remedy against the general application of allegedly unreasonably high rates lies at the ballot box.

This follows from the fact that under our state law a consumer cannot establish standing to challenge the utility's rates on the ground that they are generally too high. Professor Freund has said that the concept of standing is 'among the most amorphous in the entire domain of public law.' ³ Certainly it is inextricably related to the merits of the case. To have standing to institute a claim, the consumer must have a legally protected interest, or 'legal interest standing.' 'A litigant ordinarily has standing to challenge governmental action of a sort that, if taken by a private person, would create a right of action cognizable by the courts. . . . Or standing may be based upon an interest created by the Constitution or a statute. . . . But if no comparable common-law right exists and no such constitutional or statutory interest has been created, relief is not available judicially.' Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 152, 71 S.Ct. 624, 638, 95 L.Ed. 817 (Frankfurter, J., concurring).

There is no statutory nor common law right in a Georgia consumer to obtain judicial review of the reasonableness of a rate order made by the Public Service Commission. The Georgia Administrative Procedure Act of 1964 contains a statutory judicial review procedure; however the legislature expressly exempted the Public Service Commission from the terms of the Act. Code Ann. §§ 3A-120 and 3A-102. Therefore, it follows that the consumer must have a legally protected interest under the Georgia or federal constitutions in order to have 'legal interest standing' to challenge a rate order made by the Commission. He certainly has an interest in escaping invidious discrimination, and thus he may bring a claim grounded in equal protection, as we have seen above. Similarly, he may invoke his rights to procedural due process where appropriate. ⁴ But an attack on rates solely because they are alleged to be too high is grounded in substantive due process. It is a claim that the consumer has been deprived of his 'property' without due process of law. And such a claim must fall for the simple reason that the consumer has no 'property' right in the rate he pays for utilities. ⁵ Thus there cannot be general rate regulation by lawsuit.

Therefore, we rule today that plaintiffs' attempt to prosecute this suit must fail because their challenge to the rate structure is not that it is discriminatory, but merely that it is too high-a challenge which presents an issue which is non-justiciable because it has been entrusted solely to the legislature, a co-ordinate branch of government.

The non-justiciability of this issue was well expressed in a 1915 opinion of the Supreme Court of Minnesota: 'Whether done by the nation, state or municipality, it (rate-making) is by representatives elected by the people and accountable to them. Such being the case, there is little danger of excessive rates being fixed. But if, perchance, it should happen, the remedy of the public is by appeal to the rate-fixing body, or, if necessary, by a change in its membership.' St. Paul Book & Stationery Co. v. St. Paul Gas Light Co., 130 Minn. 71, 153 N.W. 262. ⁶ The pertinence of this statement has been reinforced by the institutionalization of majoritarianism through the one-person, one-vote rule of the apportionment cases. It is said that Public Service Commissions and legislatures should be 'collectively responsive to the popular will.' Reynolds v. Sims, 377 U.S. 533, 565, 84 S.Ct. 1362, 1383, 12 L.Ed.2d 506. That is what representative government is all about. ⁷

In a recent decision, the Supreme Court of the United States has said that 'Lack of standing . . . does not impair the right to assert his views in the political forum or at the polls. Slow, cumbersome and unresponsive though the traditional electoral process may be thought at times, our system provides for changing members of the political branches when dissatisfied citizens convince a sufficient number of their fellow electors that elected representative are delinquent in performing duties committed to them.' United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678. It is inescapable that 'unrestricted taxpayer or citizen standing' to air generalized grievances about the conduct of legislative matters 'would significantly alter the allocation of power' and result in 'a shift away from a democratic form of government.' Id., p. 188, 94 S.Ct. p. 2952. To hold otherwise 'would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing 'government by injunction ". Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706. It would also imply a lack of trust on the part of the Judiciary in the political process. It should be noted that the 'political question doctrine' is alive and well as illustrated by a recent decision of the Supreme Court of the United States: 'The voting rights cases, indeed, have represented the Court's effort to strengthen the political system by assuring a higher level of fairness and responsiveness to the political processes, not the assumption of a continuing judicial review of substantive political judgments entrusted expressly to the coordinate branches of government.' Gilligan v. Morgan, 413 U.S. 1, 11, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407. The latter approach would "involve a serious conflict with a 'coordinate political department; . . . a lack of judicially discoverable and manageable standards for resolving (the question); . . . the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; . . . the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; . . . an unusual need for unquestioning...