Ozarks Elec. Co-op. Corp. v. Harrelson, CO-OPERATIVE
| Decision Date | 16 January 1990 |
| Docket Number | CO-OPERATIVE,No. 89-266,89-266 |
| Citation | 782 S.W.2d 570,301 Ark. 123 |
| Parties | OZARKS ELECTRICCORP., Appellants, v. Vernon HARRELSON and Norma Mae Harrelson, Appellees. |
| Court | Arkansas Supreme Court |
Burke & Eldridge by John R. Eldridge, III, Fayetteville, for appellants.
Joe B. Reed, Fayetteville, for appellees.
Vernon and Norma Mae Harrelson, appellees, reside in Washington County and have received electrical service from Ozarks Electric Cooperative Corporation, appellant, since 1973. In February, 1988 Ozarks's computer indicated significant change in the Harrelsons' electrical usage and in May the appellant tested their meter and discovered it was defective. The appellant reviewed the Harrelsons' usage pattern and determined that no kilowatt hours had been registering on the meter since July, 1987. During this eleven month period the Harrelsons received minimum electricity bills and admitted noticing a marked decrease from previous bills. (Minimum bills amounted to $7.87 per month, while prior bills ranged from $70-$80.) The appellant reconstructed the charges for this eleven month period in accordance with the Arkansas Public Service Commission's General Service Rule 10C(3)(a), estimating electrical usage costing $790.29. 1
The Harrelsons refused to pay the revised bill and after giving notice, the appellant discontinued electrical service. The Harrelsons filed an action in Circuit Court, seeking a temporary restraining order and service was reconnected. The case was transferred to chancery and the chancellor held that the chancery court maintained jurisdiction of the dispute based upon equitable principles and that the Harrelsons owed for estimated usage only after February, 1988, less any amounts previously paid. On appeal, Ozarks asserts that the chancellor erred in denying its motion to dismiss for lack of subject matter jurisdiction. We sustain the argument.
The decisional process in this case necessarily begins with Ozarks Electric Cooperative Corporation v. Turner, 277 Ark. 209, 640 S.W.2d 438 (1982), where similar issues were presented. Ozarks had discovered that the electric meter of its consumer, Turner, showed evidence of tampering and was not recording correctly. Ozarks gave the information to the prosecuting attorney and Turner was charged with theft of electrical services. Ozarks also demanded payment of $1,500, the amount it estimated to be due. Turner paid under protest and, when acquitted of the criminal charges, sued Ozarks for malicious prosecution and for the return of the $1,500. The circuit judge directed a verdict on the claim of malicious prosecution, but submitted the $1,500 claim to the jury, which awarded a verdict to Turner of $1,250. Ozarks appealed, contending that subject matter jurisdiction of the dispute belonged, not to circuit court, but to the Public Service Commission pursuant to Ark.Code Ann. § 23-3-119(a)(2) (1987). In resolving the jurisdictional argument, we examined the holding of Southwestern Electric Power Company v. Coxsey, 257 Ark. 534, 518 S.W.2d 485 (1975), which recognized the distinction between the legislative function, which can be properly carried out by an administrative agency, and the judicial function, which cannot. The Coxsey opinion quoted remarks of Justice Holmes:
A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power. [Prentis v. Atlantic Coastline, 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908).]
Rejecting the argument that jurisdiction of the dispute between Ozarks and Turner belonged to the Public Service Commission, we said:
Were the APSC to hear this case, it would not be looking to the future and making a new rule or standard affecting the public or a group generally. Rather, it would be determining issues of fact from past actions involving a particular individual within existing law and deciding the liabilities involved. [Emphasis supplied.]
With relative promptness after Turner, the...
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