South Georgia Natural Gas Co. v. Georgia Public Service Commission

• Decision Date: 07 May 1958
• Docket Number: No. 20024,20024
• Citation: 104 S.E.2d 97,214 Ga. 174
• Parties: , 25 P.U.R.3d 73 SOUTH GEORGIA NATURAL GAS COMPANY v. GEORGIA PUBLIC SERVICE COMMISSION et al.
• Court: Georgia Supreme Court

Page 97

104 S.E.2d 97

214 Ga. 174, 25 P.U.R.3d 73

SOUTH GEORGIA NATURAL GAS COMPANY v. GEORGIA PUBLIC SERVICE COMMISSION et al.

No. 20024.

Supreme Court of Georgia.

May 7, 1958.

Rehearing Denied June 4, 1958.

Dumas, O'Neal & Hayes, Birmingham, Ala., Bloch, Hall, Groover & Hawkins, Macon, for plaintiff in error.

Bennett, Pedrick & Bennett, E. Kontz Bennett, Waycross, E. Smythe Gambrell, Gambrell, Harlan, Russell, Moye & Richardson, Atlanta, Eugene Cook, Atty. Gen., Robert H. Hall, E. Freeman Leverett, Asst. Attys. Gen., Theodore M. Forbes, Jr., Harold N. Hill, Jr., Atlanta, for defendants in error.

Syllabus Opinion by the Court.

CANDLER, Justice.

An act which the legislature passed in 1956 (Ga.L.1956, Vol. 1, p. 104) provides that no person, firm or corporation, except municipal corporations and counties of this State, shall construct or operate in intrastate commerce within this State any pipeline for the transportation, distribution, or sale of natural or manufactured gas without first obtaining from the Georgia Public Service Commission a certificate of public convenience and necessity. Subsequently, on October 12, 1956, Georgia Coastal Natural Gas Corporation, a Georgia corporation, filed with the Georgia Public Service Commission an application for a certificate of public convenience and necessity to construct and operate a gas pipeline system in a specified area of southeast Georgia embracing 24 counties and a part of 4 others. The application for such a certificate was made pursuant to the provisions of the intrastate pipeline act of 1956, and to the rules which the commission adopted pursuant to section 8 thereof. South Georgia Natural Gas Company, also a Georgia corporation, interposed objections in writing to a grant of the certificate so applied for on several grounds, one of which was that the act under which the application was made is 'invalid and unconstitutional.' After the applicant and the objector had introduced their evidence, the commission on March 29, 1957, granted the certificate applied for, but expressly retained jurisdiction of the proceeding for the purpose of granting such further order or orders as to it might seem meet and proper. Thereafter, on July 22, 1957, South Georgia Natural Gas Company filed a suit in the Superior Court of Fulton County against Georgia Public Service Commission; its five members, both in their individual and official capacities; and Georgia Coastal Natural Gas Corporation. Its three-count petition, as later amended, sought to enjoin and set aside the defendant commission's order of March 29, 1957, which granted to the defendant Georgia Coastal Natural Gas Corporation the certificate of public convenience and necessity it had applied for on October 12, 1956. As grounds for such relief, counts one and two of the amended petition allege that the act as a whole offends enumerated provisions of Georgia's Constitution of 1945 and the Constitution of the United States, and that it is for that reason unconstitutional and void. And count three alleges that the evidence which the applicant (Georgia Coastal Natural Gas Corporation) introduced before the commission was insufficient to authorize the order which granted the applied-for certificate. As an exhibit, there is attached to and by reference made a part of the petition a copy of the proceedings before the commission, including all of the evidence which the parties submitted in support of and against the application for the certificate. The defendants interposed demurrers to the amended petition but, so far as the record shows, they were not ruled on; and, in due time, they also answered the amended petition. On September 20, 1957, the parties agreed in open court to submit the case to the trial judge, without a jury, for determination and final decree. Each side then introduced its evidence and from such evidence, the judge found and decreed that the plaintiff was not entitled to the relief sought. The plaintiff filed a motion for new trial, later amended it, and the exception is to a judgment overruling such amended motion. Held:

1. Before a statute can be attacked by anyone on the ground of its unconstitutionality, he must show that its enforcement is an infringement upon his right of person or property, and that such infringement results from the unconstitutional feature of the statute upon which he bases his attack. Reid v. Mayor, etc., of Eatonton, 80 Ga. 755, 6 S.E. 602; Plumb v. Christie, 103 Ga. 686, 30 S.E. 759, 42 L.R.A. 181; Wallace v. City of Atlanta, 200 Ga. 749, 38 S.E.2d 596; Villyard v. Regents of University System of Georgia, 204 Ga. 517, 50 S.E.2d 313; West v. Housing Authority of City of Atlanta, 211 Ga. 133, 136, 84 S.E.2d 30; Southern Ry. Co. v. King, 217 U.S. 524, 534, 30 S.Ct. 594, 54 L.Ed. 868; Plymouth Coal Co. v. Com. of Pennsylvania, 232 U.S. 531, 34 S.Ct. 359, 58 L.Ed. 713. He must show that the alleged unconstitutional feature of the statute injures him, and so operates as to deprive him of rights protected by the Constitution of this State or by the Constitution...