Southern Bell Telephone & Telegraph Co., Inc. v. Louisiana Public Service Commission

• Decision Date: 06 October 1936
• Docket Number: 33978
• Citation: 170 So. 548,185 La. 729
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH CO., Inc., v. LOUISIANA PUBLIC SERVICE COMMISSION
• Court: Louisiana Supreme Court

170 So. 548

185 La. 729

SOUTHERN BELL TELEPHONE & TELEGRAPH CO., Inc., v. LOUISIANA PUBLIC SERVICE COMMISSION

No. 33978

Supreme Court of Louisiana

October 6, 1936

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; W. Carruth Jones, Judge.

Suit by the Southern Bell Telephone & Telegraph Company, Inc. against the Louisiana Public Service Commission. From an adverse decree, the Louisiana Public Service Commission appeals. On appellee's motion to dismiss the appeal, and on appellee's alternative plea that the appeal be declared devolutive only.

Motion and plea denied.

Gaston L. Porterie, Atty. Gen., James P. O'Connor and Peyton R Sandoz, Sp. Asst. Attys. Gen., Henry O'Connor, of New Orleans, and Joseph A. Loret, of Baton Rouge, for appellant.

E. D Smith, of Atlanta, Ga., C. C. Bird, Jr., of Baton Rouge, and James C. Henriques and Charles J. Rivet, both of New Orleans for appellee.

FOURNET, Justice. ODOM, J., O'NIELL, C. J., concurs in the decree.

OPINION

FOURNET, Justice.

This case was previously before us on an appeal from a judgment of the lower court refusing an interlocutory injunction to restrain the enforcement of order No. 1530 of the Louisiana Public Service Commission reducing telephone rates, and, having concluded that the plaintiff had failed to show that the commission's order was palpably erroneous, arbitrary and confiscatory, and that the trial judge had abused his discretion in refusing to grant the interlocutory injunction, we affirmed the judgment. Southern Bell Tel. & Tel. Co. v. Louisiana Public Service Comm., 183 La. 741, 164 So. 786.

The case is now before us on a motion to dismiss the appeal, which was taken by the Louisiana Public Service Commission from the judgment of the lower court, rendered on the trial of the case on its merits, setting aside and declaring null the order of the commission and granting a permanent injunction against the enforcement thereof; and with an alternative plea that, if the appeal be not dismissed, it be maintained as a devolutive appeal only.

The record shows that appellant applied for an order for an appeal to this court "in the alternative, either suspensive or devolutive"; that the trial judge granted the order of appeal accordingly and made it returnable on May 28, 1936, dispensing appellant from furnishing an appeal bond; that before the return day of the appeal, the clerk of the district court filed with us a motion for and obtained an extension of the return day on the ground that, due to the voluminousness of the record, he did not have sufficient time in which to prepare the transcript of appeal before the return day; and that, before the extended period of time, the transcript was filed with the clerk of this court.

It is the contention of the appellee that the appeal must be dismissed because the extension of time granted by us was unauthorized and illegal, and consequently the transcript of the record was not filed within the time fixed by the Constitution and the order of the lower court. The basis of this contention is, first, that the Supreme Court is only authorized to grant an extension of time in cases where, on the appointed day or within 3 days of grace, the appellant has not filed the transcript, provided he was prevented from doing so by an event not under his control; and, second, that the request for further time to bring up the record from the lower court must be made by appellant in person or by his attorney exclusively, under the express terms and provisions of article 883 of the Code of Practice, which reads as follows:

"If the appellant has not filed in the Supreme Court, on the day appointed by the inferior judge, the record from the court below, and was prevented from doing so by any event not under his control, he may either in person or by attorney apply to the court before the expiration of three days, after which the appellee may obtain a certificate from the clerk declaring that the record has not been filed, and may demand a further time to bring it up, which may be granted by the court if the event causing the delay be proved to its satisfaction; the court may even grant an injunction to the appellant, during the further time allowed, to suspend the execution on the judgment appealed from, if at the time of petitioning for such further delay, the appellee has already required of the clerk the certificate necessary for the pursuit of such execution."

But section 11 of Act No. 45 of 1870, Ex. Sess., provides that "no appeal of the Supreme Court shall be dismissed on account of any defect, error or irregularity of the petition, citation or order of appeal * * * or because the appeal was not made returnable * * * on a proper day, whenever it shall not appear that such defect, error or irregularity may be imputed to the appellant or his attorney. * * *" (Italics ours.)

This court, in discussing Act No. 53 of 1839, section 19, which was the forerunner of Act No. 45 of 1870 on this subject, in the case of Jno. Chaffe & Sons v. Heyner, 31 La.Ann. 594, at page 595, said:

"But that case was decided in 1832, and the statute of 1839 operated a great and necessary change in the mode or causes for which appeals were dismissable. The rankest injustice had been so often done by the dismissal of appeals for all manner of technicalities and informalities, that provision was then made, saving parties appellant from dismissal for defects or irregularities not imputable to them."

See, also, Chaffe v. Heyner, 31 La.Ann. 594, supra; State v. Dellwood, 33 La.Ann. 1229; State v. West, 33 La.Ann. 1261; State v. Balize, 38 La.Ann. 542; Watkins Banking Co. v. Louisiana Lumber Co., 47 La.Ann. 581, 17 So. 143; Pearce v. State ex rel. Breazeale, 49 La.Ann. 643, 21 So. 737; Hodge v. Monroe Mercantile Co., 105 La. 668, 30 So. 142; Jackson v. Mixon, 110 La. 581, 34 So. 695; Orleans & J. Ry. Co. v. International Const. Co., 113 La. 409, 37 So. 10; Dilzell Engineering & Const. Co. v. Lehmann, 120 La. 273, 45 So. 138; Alexandria & W. Ry. Co. v. Railroad Commission, 143 La. 1067, 79 So. 863.

Under the authority of the foregoing statutory law and the uniform jurisprudence of this court, it is immaterial whether or not this court was authorized to grant the extension of time within which to file the transcript in this case, for an appeal cannot be dismissed for an error or irregularity in the return date, whether as originally fixed by the lower court or by extension granted by this court, unless the error or irregularity is imputable to the fault of the appellant. Manifestly, if there was any irregularity or error it was not the result of any action taken by the appellant or its attorneys, or caused through their fault.

As an alternative plea, we are requested by appellee's counsel to determine whether the appeal in this case is suspensive or devolutive only. It is said that, if we conclude that it is suspensive, such appeal deprives appellee of its property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States, in that it would result in compelling appellee to either obey the commission's order under judicial review or be subjected to enormous penalties.

It is fundamental that only one appeal can be taken from a judgment, and, when an order of appeal grants the appellant an appeal in the alternative, suspensive or devolutive, it does not mean that appellant has two appeals but that he may perfect either. Orlando v. Reliance Homestead Ass'n, 171 La. 1027, 132 So. 777. It therefore follows that, when an order grants an appeal in the alternative, the character of the appeal is determined by the amount of the bond furnished by the appellant and the time within which the bond is filed, and, if the bond is sufficient for a suspensive appeal and is filed within the time fixed for such an appeal, the appeal is suspensive. In this case the appellant was dispensed from furnishing an appeal bond under the express provisions of article 6, § 5, of the Constitution of 1921, and generally under the provisions of Act No. 173 of 1902. When an appellant is exempt from furnishing an appeal bond, as in this case, the rendition of the order of appeal has the same effect as the filing of the bond in ordinary cases; thus the appeal is ipso facto perfected by the order granting it. Board of Commissioners v. Howard Land & Timber Co., 132 La. 911, 61 So. 868; Board of Commissioners v. Concordia Land & Timber Co., 132 La. 915, 61 So. 869; Board of Commissioners v. Hops, 132 La. 915, 61 So. 869; Board of Commissioners v. Farmer-Wren Land Co., 132 La. 916, 61 So. 870.

In the case of Agricultural Supply Co., Inc., v. Livigne et al., 177 La. 15, 147 So. 365, 366, the court distinguished between the right to a suspensive appeal from a preliminary injunction and the right to a suspensive appeal from a permanent injunction after the trial of the case on the merits, and then stated:

"It is true that a suspensive appeal cannot be applied for as a matter of right from an order granting or refusing a preliminary injunction. Act No. 29 of 1924, § 5.

"But, in the case before us, respondent judge has not only refused to grant a preliminary injunction, but has passed also upon the merits of the case, by decreeing the nullity of the sale from defendants to relator of the property herein seized by plaintiff.

"Necessarily, this is a final judgment from which relator has the right to prosecute a suspensive appeal to this court. C.P. arts. 539, 565."

The foregoing case presents the law and procedure applicable to the case at bar. Moreover, in appealable cases, the party cast always has the right to take a suspensive appeal from the final judgment except in those cases in which the law...