Ohio Public Interest Action Group, Inc. v. Public Utilities Commission, 74-1032

• Decision Date: 16 July 1975
• Docket Number: No. 74-1032,74-1032
• Citation: 72 O.O.2d 98,43 Ohio St.2d 175,331 N.E.2d 730
• Parties: , 72 O.O.2d 98 OHIO PUBLIC INTEREST ACTION GROUP, INC., Appellant, v. PUBLIC UTILITIES COMMISSION of Ohio et al., Appellees.
• Court: Ohio Supreme Court

Page 175

43 Ohio St.2d 175

331 N.E.2d 730, 72 O.O.2d 98

OHIO PUBLIC INTEREST ACTION GROUP, INC., Appellant, v. PUBLIC UTILITIES COMMISSION of Ohio et al., Appellees.

No. 74-1032.

Supreme Court of Ohio.

July 16, 1975.

Syllabus by the Court

1. The pendency of proceedings concerning regulation of advertising by public utilities before the Public Utilities Commission, pursuant to R.C. 4905.26, at the time Amended Substitute House Bill 206 became law, did not constitute a 'law' or 'rules properly adopted in accordance with law and in effect on March 1, 1974,' and the provision of Section 9 of that Act prohibiting the commission from limiting or restricting the right of any public utility 'to engage in and promote area development or to advertise' became applicable to such pending proceedings.

2. R.C. 4905.26 has not been repealed by implication by Section 9 of Amended Substitute House Bill 206.

3. Where, prior to issuance of a final order by the Public Utilities Commission in proceedings instituted therein to regulate advertising by public utilities, a statute becomes effective which divests the commission of authority to issue such an order, the statute is not retroactive legislation as no vested substantive rights of the party instituting the proceedings are affected.

4. The question of the constitutionality of every law being first determined by the General Assembly, every presumption is in favor of its constitutionality and it must clearly appear that the law is in direct conflict with inhibitions of the Constitution before a court will declare it unconstitutional. (State Board of Health v. Greenville, 86 Ohio St. 1, 98 N.E. 1019, followed.)

5. The Public Utilities Commission of Ohio is a creature of the General Assembly and may exercise no jurisdiction beyond that conferred by statute. (Penn Central Transportation Co. v. Pub. Util. Comm., 35 Ohio St.2d 97, 298 N.E.2d 587 approved and followed.)

6. The purpose of R.C. 4905.61 is to provide damages to parties injured by the acts of utilities and not to pay attorney fees.

In September 1972, appellant, Ohio Public Interest Action Group, Inc., filed a complaint with appellee, Public Utilities Commission, pursuant to R.C. 4905.26, naming as respondents seven electric utility companies. In its amended complaint, appellant prayed for the commission to 'take the following action':

'1. Order all respondents engaged in advertising to immediately cease all advertising and promotional practices whatsoever which directly or indirectly encourage the demand for, or the use or consumption of, electrical power in the state of Ohio.

'2. That in the alternative, respondents be ordered to immediately cease to include monetary expenditures for said advertising and promotional practices in the category of operating expenses in the Annual Reports filed with the Public Utilities Commission of Ohio and thereby prohibiting the cost for said advertising and promotional practices from being passed on to the consumer.

'3. That respondents refund to their consumers on a pro-rated basis all expenses incurred by the respondents and charged to the consumer for advertising and promotional activities since energy conservation was recognized as an issue of national concern; to wit: Earth Day, in March of 1970, the exact amount of which is not known to the complainant but will be determined by the evidence, and is approximately $75,000,000 (seventy-five million dollars).

'4. Order respondents to adopt and implement a program whereby electrical power conservation must be considered at all levels of corporate activity including rate making, and the hiring and promotion of employees and officers.

'5. Undertake an investigation to discover any other activities of respondents which encourage the demand for, or the use or consumption of, electrical power in the state of Ohio, and issue appropriate orders to encourage conservation of electrical power and minimize environmental harm.

'6. Condition any further remedy or rate relief requested by respondents on maximum efforts by respondents to encourage conservation of electrical power and minimize environmental harm.

'7. Take any other imaginative and appropriate action to encourage respondents to conserve electrical power and minimize environmental harm.

'8. That claimant and the class action claimants shall have all costs, expenses and fees, including reasonable attorneys fees and such other and further relief as the Public Utilities Commission of Ohio shall deem just and proper.'

Subsequently, the commission consolidated the instant cause with its own case, entitled, 'In the Matter of the Commission investigation of promotional activities of electric companies in Ohio,' and conducted hearings on the matters raised in the complaint.

During the course of the commission proceedings, the General Assembly enacted Amended Substitute House Bill 206. Section 9 of that Act reads:

'No state agency, board, or commission shall limit or restrict the right of any public utility to engage in and promote area development or to advertise, except as otherwise expressly provided by law or by rules properly adopted in accordance with law and in effect on March 1, 1974.'

On August 22, 1974, the commission entered in its journal the following entry in response to a motion to dismiss filed by intervenor, Ohio Association of Broadcasters:

'(1) The Ohio Association of Broadcasters filed with the commission a motion to dismiss the above three cases on April 29, 1974.

'(2) The commission has previously entered entries and orders in the above matters (the consolidated cases) and held hearings with a view to determining the appropriateness of advertising and other promotional activities for electric and gas utilities.

'(3) The Legislature has enacted Sub. H. B. 206, establishing the Energy Emergency Commission, which provides in Section 9:

'No state agency, board, or commission shall limit or restrict the right of any public utility to engage in and promote area development or to advertise, except as otherwise expressly provided by law or by rules properly adopted in accordance with law and in effect on March 1, 1974.

'This statute, when it becomes effective, prohibits the commission from proceeding further in these matters, and therefore, they should be dismissed.

'(4) Although the instant cases are dismissed, Section 9 does not apply to commission determination of the reasonableness of the type of expenses under question here in rate proceedings.

'Therefore, it is,

'Ordered, That the above-entitled matters hereby are dismissed.'

From the foregoing order of the commission, appellant perfected an appeal to this court.

Zellmer & Gruber, James J. Schiller, Sheldon R. Jaffery and Charles B. Zellmer, Cleveland, for appellant.

William J. Brown, Atty. Gen., Charles S. Rawlings and Thomas J. Conaty, Columbus, for appellee Public Utilities Commission.

Dargusch & Day and Ted B. Clevenger, Columbus, for appellee Ohio Association of Broadcasters.

Edwin N. Hopping, Cincinnati, Alan D. Wright, Squire, Sanders & Dempsey, Alan P. Buchmann, James H. Woodring, Cleveland, Porter, Stanley, Platt & Arthur, Michael P. Graney, Curtis A. Loveland, Columbus, William E. Herron, Stephen F. Koziar, Jr., Dayton, Richard S. Weygandt, Fairmont, W. Va., Russell J. Spetrino, Akron, Day, Ketterer, Raley, Wright & Rybolt, Robert M. Rybolt, Canton, Fuller, Henry, Hodge & Snyder, Toledo, Paul M. Smart, Columbus, and Reginald S. Jackson, Toledo, for appellees The Cincinnati Gas & Electric Co. and others.

CORRIGAN, Justice.

The first three of appellant's propositions of law are directed to the applicability of Section 9 of Amended Substitute House Bill 206 to the proceedings being conducted by the Public Utilities Commission, pursuant to appellant's complaint.

I.

Appellant's initial contention is that Section 9 cannot affect the proceedings or the commission's investigation because Section 9 'contains a savings clause which saves and makes the law under which these cases have been initiated still applicable.' The 'savings clause' referred to by appellant is the language of the statute which excepts from its terms restrictions on advertising which were '* * * otherwise expressly provided by law or by rules properly adopted in accordance with law and in effect on March 1, 1974.'

It is appellant's position that R.C. 4905.26, under which the present proceedings were being conducted at the time of the enactment of Amended Substitute House Bill 206, is a 'law' which was 'in effect on March 1, 1974' and that R.C. 4905.26 vests the commission with authority 'to regulate advertising or promotional activity of any sort by public utilities.'

R.C. 4905.26 provides, in pertinent part:

'Upon complaint in writing against any public utility by any person, firm, or corporation, or upon the initiative or complaint of the public utilities commission, that any rate, fare, charge, toll, rental, schedule, classification, or service, or any joint rate, fare, charge, toll, rental, schedule, classification, or service rendered, charged, demanded, exacted, or proposed to be rendered, charged, demanded, or exacted, is in any respect unjust, unreasonable, unjustly discriminatory, unjustly preferential, or in violation of law, or that any regulation, measurement, or practice affecting or relating to any service furnished by said public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential, or that any service is, or will be, inadequate or cannot be obtained, and, upon complaint of a public utility as to any matter affecting its own product or service, if it appears that reasonable grounds for complaint are stated, the commission shall fix a time for hearing and shall notify complainants and the public utility thereof, and shall publish notice thereof in a newspaper of general circulation...