Georgia Retail Ass'n v. Georgia Public Service Com'n

• Decision Date: 26 January 1983
• Docket Number: No. 65458,65458
• Parties: GEORGIA RETAIL ASSOCIATION v. GEORGIA PUBLIC SERVICE COMMISSION et al.
• Court: Georgia Court of Appeals

Page 544

300 S.E.2d 544

165 Ga.App. 208

GEORGIA RETAIL ASSOCIATION v. GEORGIA PUBLIC SERVICE COMMISSION et al.

No. 65458.

Court of Appeals of Georgia.

Jan. 26, 1983.

Sidney L. Moore, Jr., Decatur, for appellant.

James E. Joiner, Douglas L. Miller, Thomas C. Herman, C. Christopher Hagy, Victor M. Baird, Consumers Utility Counsel, Robert B. Remar, Ed Martin, Jim O. Llewellyn, Asst. Atty. Gen., Atlanta, for appellee.

DEEN, Presiding Judge.

This is an appeal by the Georgia Retail Association ("GRA") from an order of the Fulton County Superior Court affirming the decision of the Georgia Public Service Commission ("Commission") in a 1981 electric rate increase proceeding commenced by the Georgia Power Company ("Company").

On November 24, 1981, the Commission granted the Company a $265.2 million non-fuel revenue increase that was to be spread equally among the three major customer classes (residential, industrial and commercial). GRA then sought judicial review by the superior court, complaining that the equal percentage method of allocation discriminated against the commercial class in violation of the equal protection guarantees of both the Constitution of the United States and the Constitution of the State of Georgia. Intervenors on behalf of the Commission included the Company, the Consumers' Utility Counsel, the Georgia Industrial Group, and the Georgia Poverty Rights Organization. In affirming the Commission's decision, the superior court ruled that the rate allocation had a rational basis supported by the evidence. GRA appealed to the Georgia Supreme Court, which transferred the case to this court on October 20, 1982, evidently because the case involved the application of a previously articulated constitutional standard to a set of facts, rather than a novel constitutional question.

Appellant asserts that the superior court erred in affirming the Commission's decision, because the decision unjustly discriminated against the commercial class of electricity consumers by requiring it to supplement to an excessive degree the rates of the residential class of consumers, without requiring the industrial class of consumers to share the burden. For the following reasons, we agree with the superior court that this case is controlled by Allied Chem. Corp. v. Ga. Power Co., 236 Ga. 548, 224 S.E.2d 396 (1976), and affirm.

It appears that appellant actually has waived any complaint that it was unjustly discriminatory to supplement the residential class. Appellant declined to argue this issue at trial, acknowledging that the superior court was bound by a previous supreme court decision; additionally, in its brief, appellant informed the court below that while it did not abandon the issue, it elected not to argue the issue at that level, reserving the right to raise the issue on appeal. In its order of affirmance, the superior court clearly did not rule upon this issue.

Matters to be considered on appeal, however, are limited to those which were urged before the trial court. Kingston v. State, 127 Ga.App. 660, 194 S.E.2d 675 (1972); Kitchens v. State, 228 Ga. 624, 187 S.E.2d 268 (1972). As appellant did not invoke a ruling from the superior court on the residential rate issue, there is nothing for the court to review. Sheard v. State, 121 Ga.App. 666(1), 175 S.E.2d 148 (1970); Hood v. Rice, 225 Ga. 327, 168 S.E.2d 150 (1969).

In any event, in deciding that the rate increase should be allocated to the separate classes uniformly and equally on base rate revenue, the Commission exercised its delegated legislative function, and we may not substitute our discretion for that of the Commission unless the order is clearly unreasonable, arbitrary, or capricious. Atlanta Gas Light Co. v....