Georgia Public Service Com'n v. Southern Bell

• Decision Date: 02 April 1985
• Docket Number: Nos. 42025,42026,s. 42025
• Citation: 254 Ga. 244,327 S.E.2d 726
• Parties: GEORGIA PUBLIC SERVICE COMMISSION et al. v. SOUTHERN BELL. KIRKLAND, Consumers Utility Counsel v. SOUTHERN BELL.
• Court: Georgia Supreme Court

Page 726

327 S.E.2d 726

254 Ga. 244

GEORGIA PUBLIC SERVICE COMMISSION et al. v. SOUTHERN BELL.

KIRKLAND, Consumers Utility Counsel v. SOUTHERN BELL.

Nos. 42025, 42026.

Supreme Court of Georgia.

April 2, 1985.

Michael J. Bowers, Atty. Gen., Michael S. Bradley, Asst. Atty. Gen., for Georgia Public Service Commission et al.

George B. Haley, Kilpatrick & Cody; J. Robert Fitzgerald, Robert W. Sterrett, Jr., William Joseph Bruckner, Atlanta, for Southern Bell Telephone and Telegraph Co.

Horace F. Hartley, Atlanta, for Georgia Public Service Comm.

Deppish Kirkland, III, James S. Thomas, Jr., Atlanta, Office of Consumers' Utility Counsel.

Dellon E. Coker, Cecil O. Simpson, Jr., Regulatory Law Office, Falls Church, Va.

Michael Kurs, Atlanta, Counsel for Georgia Poverty Knights Organization, Atlanta.

Peyton S. Hawes, Atlanta, for Atlanta Alarm Assoc.

John P. Fons, Michael A. Donnella, Gene V. Coker, Atlanta, for AT & T Communications.

Debra Kaplan, Atlanta, for Georgia Hospital Assoc.

Raymond L. Baggarly, Atlanta, for Answering-Radio Communications, Inc.

CLARKE, Justice.

This appeal presents the question of whether the judge of a superior court is authorized to grant interlocutory injunctive relief when performing the role of a court of review in an appeal filed pursuant to the Georgia Administrative Procedures Act, OCGA 50-13-19.

The appellee, Southern Bell Telephone and Telegraph Company (hereinafter "Southern Bell"), filed an application for a rate increase of $109,325,234 annually with the Georgia Public Service Commission (hereinafter "Commission"). This application was filed on March 30, 1984. The Commission ordered a suspension of the rates for five months from April 30, 1984 and conducted evidentiary hearings as authorized by OCGA 46-2-25. By orders of September 28, 1984 and October 22, 1984, the Commission granted an increase of $34,661,000 annually.

On October 26, 1984, Southern Bell filed a petition for review of the Commission's order pursuant to OCGA 50-13-19 in the Superior Court of Fulton County. On November 5, 1984, Southern Bell filed a "Motion for Injunction Pending Trial" contending that if interim relief were not granted Southern Bell would suffer irreparable harm. By affidavit they alleged that clear errors in the Commission's order showed that Southern Bell should be entitled to collect an additional $15,701,000 pending appeal. This motion was opposed by the Commission as well as the intervenors, Consumers' Utility Counsel and Georgia Poverty Rights Organization.

The superior court entered an interlocutory injunction and found that Southern Bell would be irreparable harmed if on final appeal the court should determine that the Commission's order was arbitrary and capricious on any issue because of the utility's inability to recoup revenue lost in the interim. The court further found that subscribers could be adequately protected by a bond and refund requirement in the event the interim increased rates were determined improper in a final disposition. The court concluded that Southern Bell, by affidavit had shown a reasonable probability of success on the merits as to four of its alleged errors by the Commission which result in increased revenues of $8,036,000 which the court ordered pending trial. The court's order also sets out a rate schedule to be applied for collecting the additional $8,036,000. The order requires that Southern Bell will refund any amounts collected pursuant to the court's order in excess of the rates finally put into effect.

The superior court issued a temporary stay and the Commission and intervenors filed an appeal and motions for stay and expedited appeal in this court. These motions were granted.

The appellants contend the superior court erred in issuing the injunction on the grounds that: (1) under an appeal filed pursuant to the APA, the statutory remedy, OCGA 50-13 et seq., is exclusive and such injunctive relief as ordered here is not available, (2) the court exceeded its authority in the appeal by substituting its judgment for that of the Commission and by actually setting rates which is constitutionally prohibited, and (3) that if the court had discretion to exercise, then its order here was an abuse of that discretion.

Southern Bell contends that the action of the superior court was authorized by the holding of this court in Southern Bell Telephone & Telegraph Co. v. Georgia Public Service Commission, 203 Ga. 832, 49 S.E.2d 38 (1948), which upheld preliminary injunctive relief and by Dept. of Natural Resources v. American Cyanamid Co., 239 Ga. 740, 238 S.E.2d 886 (1977), on the principle that equity will intervene where there is no adequate remedy at law.

Proceedings of the Public Service Commission were made subject to the Administrative Procedure Act (hereinafter "APA") in Ga.L.1975, p. 404. Prior to that time, orders of the Commission were challenged by filing a suit in equity in the superior court to enjoin enforcement of the Commission's orders. See Ga. Public Service Comm. v. General Tel. Co., 227 Ga. 727, 182 S.E.2d 793 (1971); Ga. Power Co. v. Ga. Public Service Comm., 231 Ga. 339, 201 S.E.2d 423 (1973); Statesboro Tel. v. Public Service Comm., 235 Ga. 179, 219 S.E.2d 127 (1975). The basis for the court in equity to intercede in the legislative domain of rate making was the protection of constitutional rights; rates set unreasonably low may be set aside as confiscatory. Ga. Public Service Comm. v. Ga. Power Co., 182 Ga. 706, 186 S.E. 839 (1936); Southern Bell Telephone & Telegraph, supra.

In Southern Bell Telephone & Telegraph the court held that courts of equity, while possessing no rate making power, do have jurisdiction to enjoin rates that are confiscatory, which result in an unconstitutional taking of property. As a part of this jurisdiction the equity court could set an amount that the utility be allowed to collect until the commission acted to set constitutional rates. A specific dollar amount was set in that case because this court found that the amount necessary to avoid constitutional confiscation was uncontradicted.

The present method available for challenging an order of the Commission is to file an appeal pursuant to OCGA 50-13-19. When this statutory right of review is available, a complaint in equity is not available, Schieffelin & Co. v. Strickland, 253 Ga. 385, 320 S.E.2d 358 (1984), and therefore, the earlier cases involving complaints in equity are not controlling. To determine the scope of relief available we must look to the language of the APA.

The review under OCGA 50-13-19 is a review by the judge of the superior court of the record made before the agency. OCGA 50-13-19(g). This subsection allows for proof of irregularities before the agency not shown by the record. Subsection (f) provides for cases when a party shows good cause for presentation of additional evidence not presented before the agency. Under subsection (f) if the court finds the additional evidence is material and there is good cause shown for failure to present it previously, the court does not take evidence, but may order the agency to hear the evidence and make a ruling thereon, which is then made a part of the appeal.

Subsection (h) provides as follows:

"(h) The court shall not substitute its judgment for that of the agency as to the weight of the evidence or questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other...