Southern Bell Tel. & Tel. Co. v. Invenchek, Inc.

• Decision Date: 25 January 1974
• Docket Number: No. 2,No. 48831,48831,2
• Citation: 204 S.E.2d 457,130 Ga.App. 798
• Court: Georgia Court of Appeals
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY v. INVENCHEK, INC

Page 457

204 S.E.2d 457

130 Ga.App. 798

SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY v. INVENCHEK, INC.

No. 48831.

Court of Appeals of Georgia, Division No. 2.

Jan. 25, 1974.

Rehearing Denied Feb. 7, 1974.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, A. Kimbrough Davis, Harry S. Baxter, Judson H. Simmons, Atlanta, Weekes, Candler & Sams, Gary M. Sams, Decatur, for appellant.

Sacker & Magner, John E. Sacker, Jr., Edward J. Magner, Atlanta, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

1. Boards and commissions may be either legislative or constitutional, and, where their powers are set out in the Constitution, unless the act complained of violates some constitutional principle, the courts should not and cannot interfere. Bedingfield v. Parkerson, 212 Ga. 654(1), 94 S.E.2d 714. 'An attempt by the legislature without express constitutional authority to delegate the power to make law is a violation of Article III, Section I, Paragraph I of the Constitution.' (Emphasis supplied.) Flynn v. State, 88 Ga.App. 52, 56, 76 S.E.2d 38, 41.

The Public Service Commission is constitutionally created. Article IV, Sec. II, Par. I of the Constitution of 1877 first conferred on the General Assembly the duty to regulate railroad rates and tariffs with power of enforcement, pursuant to which it enacted Ga.L.1878, pp. 125, 128, setting up a three man commission to make and evforce just and reasonable rates and tariffs, to adjudge compensatory damages for violation, and to provide fines for nonobedience to the Commission's orders. This developed in the Constitution of 1945 (Art. IV, Sec. IV, Par. III, Code Ann. § 2-2703) into the creation of the Public Service Commission for the regulation of utilities, among which telephone companies are now included, 'vested with the jurisdiction, powers and duties now provided by law or that may hereafter be prescribed by the General Assembly, not inconsistent with other provisions of this Constitution.' This constitutionally fixes the sole power for determination of what are reasonable rates in this body, as required by our present Code § 93-309. Under Code Ann. § 93-307 the commission has the sole power to require telephone companies, among others 'to establish and maintain such public service . . . as may be reasonable and just.' (Code Ann. § 93-307). 'The function of making telephone rates is legislative in nature, and such rates can not be judicially fixed by courts.' Southern Bell Tel. and Tel. Co. v. Georgia Public Service Comm., 203 Ga. 832, 870, 49 S.E.2d 38, 61. To phrase it differently, ratemaking is a legislative function which the Constitution of this state has both authorized and required the Legislature to delegate to the members of the Commission. To this extent, and to this extent only, the Commission is constitutionally charged as a lawmaking body, and so long as it does not itself act in an unconstitutional manner the courts do not have any right to interfere.

An example of the unconstitutional use of ratemaking power is the setting of rates at a confiscatorily low level. 'It is the responsibility of the commission to require a regulated utility to provide a level of service within its service area this year, next year, and in the foreseeable future; consonant with this responsibility the commission must approve utility rates that will produce enough revenue not only for operating expenses but also for the capital the costs of the business. Capital for the business includes that required for current and future construction, and its costs include interest and dividends that must be paid to reasonably attract such capital.' Georgia Power Co. v. Georgia Pub. Serv. Comm., 231 Ga. 339, 344, 201 S.E.2d 423, 427.

The question raised in this case is this: Where a telephone subscriber claims damages due to negligence on the part of the company in curtailing service, may the company defend based on the Commission General Subscriber Services Tariff § A2.4.4: 'The liability of the Telephone Company for damages arising out of mistake, omissions,...