State ex rel. Cartwright v. Southwestern Bell Telephone Co., 56728

CourtSupreme Court of Oklahoma
Citation662 P.2d 675
Docket NumberNo. 56728,56728
PartiesSTATE of Oklahoma ex rel. Jan Eric CARTWRIGHT, Attorney General, Appellant, v. SOUTHWESTERN BELL TELEPHONE CO. (Oklahoma); United Telephone Assn., Inc.; Kan Okla. Telephone Assn.; Craw-Kan Telephone Coop. Assn., Inc.; Continental Telephone Company of Kansas; Totah Telephone Company; Elkhart Telephone Company; United Telephone Company of Arkansas; Seneca Telephone Company; Continental Telephone Company of Missouri; and The Corporation Commission of the State of Oklahoma, Appellees.
Decision Date19 April 1983

Page 675

662 P.2d 675
1983 OK 40
STATE of Oklahoma ex rel. Jan Eric CARTWRIGHT, Attorney
General, Appellant,
v.
SOUTHWESTERN BELL TELEPHONE CO. (Oklahoma); United
Telephone Assn., Inc.; Kan Okla. Telephone Assn.; Craw-Kan
Telephone Coop. Assn., Inc.; Continental Telephone Company
of Kansas; Totah Telephone Company; Elkhart Telephone
Company; United Telephone Company of Arkansas; Seneca
Telephone Company; Continental Telephone Company of Missouri;
and
The Corporation Commission of the State of Oklahoma, Appellees.
No. 56728.
Supreme Court of Oklahoma.
April 19, 1983.

Page 676

Jan Eric Cartwright, Atty. Gen. of Okl., Michael L. Bardrick, Asst. Atty. Gen., Chief, Consumer/Utility Div., Rhett Darby, Asst. Atty. Gen., Russell Cook, Legal Intern, Oklahoma City, for appellant.

Robert D. Stewart, Jr., Gen. Counsel, Lindil C. Fowler, Jr., Deputy Gen. Counsel, Eddie M. Pope, Appellate Counsel, Oklahoma Corp. Com'n, Oklahoma City, for appellee, Oklahoma Corp. Com'n.

William J. Free, Mary R. Whitten, Oklahoma City, for appellee, Southwestern Bell Telephone Co.

LAVENDER, Justice:

The State of Oklahoma, ex rel. the Attorney General, as Appellant filed a Petition in Error in the Supreme Court of the State of Oklahoma to review on appeal the final order of the Corporation Commission of the State of Oklahoma. The appeal was assigned to the Court of Appeals, Division No. 1, for determination. That court handed down its decision. To that decision Appellees Southwestern Bell Telephone Company and the Oklahoma Corporation Commission filed their motions for rehearing. Both motions were denied. Said Appellees filed applications to the Supreme Court to grant certiorari and to review the decision of the Court of Appeals. The petitions for certiorari were granted. Thereafter, Appellee Oklahoma Corporation Commission filed a motion for leave to file an additional brief addressing the issue of whether the Court of Appeals may constitutionally decide cases appealed from the Oklahoma Corporation Commission to the Supreme Court, and assigned by the Supreme Court to the Court of Appeals for determination. The motion was granted. Briefs on the issue of the assignability of appeals from the Corporation Commission to the Court of Appeals have now been filed.

Ten telephone companies maintain central or telephone exchange offices in bordering

Page 677

states, a small portion of whose customer users are located across the border and within the State of Oklahoma.

On March 26, 1981, the Corporation Commission of the State of Oklahoma adopted Order No. 186940, which in substance, determined the following:

When any exchange is served by a central office or offices located in an adjacent state and the lesser of 10% or 500 of the customers served are located in Oklahoma (except when the exchange has fewer than 500 customers the 10% limitation shall not apply), the basic local exchange services within Oklahoma shall be furnished at the rates and charges prescribed by the adjacent state within which such central office or offices are located;

PROVIDED:

a. The company shall file all pleadings with the Oklahoma Corporation Commission as are filed with the adjacent state within 10 days subsequent to the filing, or within 10 days from the effective date of the order;

b. The company shall mail notice to its Oklahoma users that such user may contact the Oklahoma Corporation Commission regarding any objections to any proposed rate increase, together with an impact statement as directed by the Oklahoma Corporation Commission;

c. The rates and charges prescribed by an Order of the Regulatory Agency of such adjacent state, after a hearing on the merits has been held in said adjacent state, shall be filed with the Oklahoma Corporation Commission; and

PROVIDED FURTHER that unless the Oklahoma Corporation Commission, within 30 days after filing of the rates and charges approved by the adjacent state, determines that additional hearings are required to either accept or reject such rates and charges, then said rates and charges shall become lawfully effective for the Oklahoma customers upon the same date when such rates and charges are effective in the adjacent state.

Two issues are presented for determination on appeal:

1. May appeals to the Supreme Court of the State of Oklahoma from orders of the Oklahoma Corporation Commission affecting rates, charges, classifications of traffic, and rules and regulations of transportation and transmission companies doing business in the State of Oklahoma be assigned by the Supreme Court to the Court of Appeals of the State of Oklahoma for determination?

2. Does the order as promulgated by the Oklahoma Corporation Commission constitute an unlawful abrogation and delegation of the Commission's constitutional duties?

We answer the first issue in the affirmative, and the second in the negative.

I.

Art. 9, § 20 of the Oklahoma Constitution in pertinent part provides:

"An appeal from an order of the Corporation Commission affecting the rates, charges, services, practices, rules, or regulations of public utilities, or public service corporations, shall be to the Supreme Court only, ...

* * *

* * *

".... Upon review, the Supreme Court shall enter judgment, either affirming or reversing the Order of the Commission appealed from.

"No court of this State, except the Supreme Court, shall have jurisdiction to review, affirm, reverse, or remand any action of the Corporation Commission with respect to the rates, charges, services, practices, rules, or regulations of public utilities, or of public service corporations or to suspend or delay the execution or operation thereof, or to enjoin, reverse, or interfere with the Corporation Commission in the performance of its official duties; ...."

By State Question No. 448, Legislative Referendum No. 164, adopted at an election held on July 11, 1967, Article 7 of the Oklahoma Constitution was rewritten. Sec. 5 of the newly constituted Art. 7 provides, in part:

Page 678

".... In the event of the creation of intermediate appellate courts, all appeals shall be made to the Supreme Court, which may, by rule, determine the method of assignment to, and recall from, the intermediate appellate courts until otherwise provided by statute. When the intermediate appellate courts acquire jurisdiction in any cause and make final disposition of the same, such disposition shall be final and there shall be no further right of appeal except for issuance of a writ of certiorari ordered by a majority of the Supreme Court which may affirm, modify or make such other changes in said decision as it deems proper."

By 20 O.S.Supp.1968, § 30.1, the Court of Appeals of the State of Oklahoma was created. That section, in pertinent part, further provides:

".... The Court of Appeals shall have jurisdiction of all cases that are assigned to it by the Supreme Court, and the decisions of the Court of Appeals shall be final and shall not be appealable to the Supreme Court or reviewed by another division of the Court of Appeals or the whole Court of Appeals. Provided, however, that the decisions of the Court of Appeals may be reviewed by the Supreme Court if a majority of the Justices of said...

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    ...are not applicable to a legislative proceeding such as ratemaking. State v. Southwestern Bell Telephone Co., 1983 OK 40, ¶ 34, 662 P.2d 675, 681; Chickasha Cotton Oil Co. v. Corp. Comm'n, 1977 OK 40, ¶ 6, 562 P.2d 507, 27. The provisions of OAC 165:55-5-66(1)(A)(ii) state in pertinent part:......
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    ...Comm'n, 1990 OK 103, 1990 OK 104, ¶ 9, 825 P.2d 1262; State ex rel. Cartwright v. Southwestern Bell Telephone Co., 1983 OK 40, ¶ 23, 662 P.2d 675; Horton v. City of Oklahoma City, 1977 OK 87, ¶ 20, 566 P.2d 431, appeal dismissed, 434 U.S. 1056, 98 S.Ct. 1222, 55 L.Ed.2d 755 (1978); Chickash......
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