State ex rel. Shevin v. Yarborough

• Decision Date: 26 January 1972
• Docket Number: No. 41699,41699
• Citation: 257 So.2d 891
• Parties: STATE of Florida ex rel. Robert L. SHEVIN, Attorney General of the State of Florida, Petitioner, v. Jess YARBOROUGH, Chairman, et al., Respondents.
• Court: Florida Supreme Court

Page 891

257 So.2d 891

93 P.U.R.3d 401

STATE of Florida ex rel. Robert L. SHEVIN, Attorney General of the State of Florida, Petitioner, v. Jess YARBOROUGH, Chairman, et al., Respondents.

No. 41699.

Supreme Court of Florida.

Jan. 26, 1972.

Robert L. Shevin, Atty. Gen., Herbert T. Schwartz, Deputy Atty. Gen., Daniel S. Dearing, Chief Trial Counsel, Tallahassee, W. Robert Olive, Jr., and Howell L. Ferguson, Asst. Attys. Gen., for petitioner.

Prentice P. Pruitt and M. Robert Christ, Tallahassee, Fla. Public Service Comm., for respondent.

Leonard Helfand, Miami Beach, for The Florida State Council for Senior Citizens, Inc., as amicus curiae.

PER CURIAM.

This is an original proceeding in mandamus upon the petition of the Attorney General of Florida seeking to compel the Respondent Public Service Commission to allow him to intervene 'on behalf of all citizens of the State of Florida who are consumers of the electrical services provided by Florida Power Corp. in a pending application for rate increase before the Public Service Commission' (P.S.C hereafter). Fla.Const. art. V, § 4, F.S.A.

Respondent P.S.C. has recognized the intervention before it of the Attorney General on behalf of the State of Florida as a consumer and this right is in no wise questioned. Respondent's order initially allowed the intervention by the Attorney General also as representing all affected citizens, but thereafter receded from this latter provision in the following language:

'We certainly recognize the authority of the Attorney General to intervene in this proceeding representing the State of Florida as a substantial consumer of the service of Florida Power Corporation. However, we do not find in the constitution of Florida, the statutes of this State, or in the case decided by the courts, any requirement or authorization by law or legislative resolution, by which the Attorney General is the advocate of the general body of utility consumers throughout the State of Florida.' (Emphasis supplied)

By mandamus the Attorney General requests that the emphasized portion of the order quoted above be expunged, as well as all reference made in the order to the Attorney's powers and duties as a representative and advocate of the citizens and consumers of the State.

On the other hand, P.S.C. says that Fla.Stat. Chapter 366, F.S.A., bestows on it the full power of the State to exercise exclusive jurisdiction for the protection of the public welfare in the regulation and supervision of the rates and services of public utilities, and there is no duty imposed by law on the Attorney General of the State to participate in the functions of the Florida Public Service Commission.

We are faced with the following narrow question:

Where the Attorney General of the State intervenes in proceedings before the P.S.C. representing the State of Florida as a substantial consumer, may the Attorney General under such circumstances present evidence and argument that would benefit all citizens of the State who may be consumers of such services?

Under the provisions of Fla.Const. art. IV, § 4, F.S.A., the Attorney General is the 'Chief State Legal Officer' and 'shall exercise such duties as may be prescribed by law.' Although the P.S.C. by virtue of Fla.Stat. § 366.01, F.S.A., exercises the police power of the State for the protection of the public welfare and by its statutorily authorized Rule 25--1.24, the Legal Department represents the general public interest in all rate cases, there is no statute which prohibits the Attorney General from representing the State of Florida as a consumer, and offering such evidence and argument as will benefit its citizens. Generally speaking, the Attorney General is Chief Counsel for the State which in final analysis is the people. This principle was followed in State ex rel. Landis v. S. H. Kress & Co., 115 Fla. 189, 155 So. 823 (1934), where this Court upheld the power of the Attorney General to test by writ of quo warranto the right of a foreign corporation to operate in Florida.

In State ex rel. Davis v. Love, 99 Fla. 333, 126 So. 374 (1930), this Court allowed the Attorney General to file a writ of prohibition against a circuit judge to protect the interest of the State in its sovereign immunity from suit.

In State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929 (1905), the Attorney General brought an original proceeding in quo warranto to attack the validity of a statute creating the Florida Agricultural College. But see Fla.Stat. § 350.31, F.S.A., which provides:

'350.31 Conducting suits.--All suits instituted by the Florida public service commissioners through special counsel shall be conducted as now provided by law, and the Department of legal affairs (Attorney General) or any state attorney shall join in any such suit When requested to do so by said commissioners.' (italics and bracketed portions supplied)

Also see Section 1(b), Article IV, Constitution of Florida, which says:

'(b) The governor may initiate judicial proceedings in the name of the state against any executive or administrative state, county or municipal officer to enforce compliance with any duty or restrain any unauthorized act.'

Nevertheless, the Attorney General is before the Public Service Commission representing the State of Florida because it is a consumer. The State is the people and, therefore, he would have every opportunity to oppose a rate increase on behalf of the State of Florida as a consumer which he would have if he were there representing all the people under a different title. Since he has this opportunity, he is not injured and the cases are legion which hold that where a person has not been injured he has no standing to maintain a suit. The Attorney General has not demonstrated any service to be rendered to all citizen consumers that he could not render as attorney for the State of Florida as a consumer.

The Attorney General inherited many powers and duties from the King's Counsellor at Common Law, but in adopting the Common Law, the Florida Legislature said:

'Common law and certain statutes declared in force.--The common and statute laws of England which are of a general and not a local nature, wich the exception hereinafter mentioned, down to the fourth day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the constitution and laws of the United States and the acts of the Legislature of this state.' See F.S. § 2.01, F.S.A. (italics supplied)

Public policy on the outer perimeter of his authority is therefore more a Legislative than Judicial question. We take judicial notice that the Legislature of Florida convenes in a few days and we defer to that august body the broader question of the outer limits of such authority.

These mandamus proceedings are not the vehicle by which all of the powers and duties of the Attorney General may be discussed or decided. We are confronted with the narrow question recited above, and this opinion is limited to a determination of that question alone. Having appeared in such proceedings in behalf of the State of Florida as a consumer, the Attorney General is representing all citizens of the State. In the final analysis, the citizens constitute the State and the State is the people.

The Attorney General, by motion before the P.S.C., sought to require Florida Power Corporation to pay a sum not to exceed $25,000 for an independent audit and investigation of the rate structure in relation to the existing application for rate increase. The denial of this motion was within the discretion of P.S.C. Where the duty is discretionary, mandamus does not lie. See 16 F.L.P., Mandamus, § 14.

The fact that the P.S.C. denied this motion of the Attorney General for funds does not prevent him from accepting funds for purposes consistent with the functions of the department. The representation of the State as a consumer, to the ultimate benefit of the people, is a proper function of the Attorney General and he has authority under Fla.Stat. § 20.05(6), F.S.A., to accept gifts, etc., for the purpose of completing his investigation.

We, therefore, conclude that the Attorney General does have status to represent the State as a consumer and to make all appropriate effort to hold down the rates and in order to insure a continuance of that right peremptory writ should issue to that end and for that purpose. We withhold the issuance of a formal writ in full confidence that the P.S.C. will proceed in compliance with the views herein expressed.

It is so ordered.

ROBERTS, C.J., and CARLOTON, ADKINS, BOYD, McCAIN and DEKLE, JJ., concur.

ERVIN, J., concurs specially with opinion.

ERVIN, Justice (specially concurring).

I have always understood that it is the inescapable historic duty of the Attorney General, as the chief state legal officer, to institute, defend or intervene in, any litigation or quasi-judicial administrative proceeding which he determines in his sound official discretion involves a legal matter of compelling public interest. I agree with him that it lay within his authority to deem that the present rate hearing sufficiently came within the legal area of public interest for him to intervene.

The courts of this state have long recognized this advocacy authority, and litigation duty of the Attorney General. It derives from the common law and in only rare instances has the Legislature otherwise provided. See State ex rel. Attorney General v. Gleason, 12 Fla. 190; State ex rel. Moodie v. Bryan, 1905, 50 Fla. 293, 39 So. 929; State ex rel. Landis v. S. H. Kress & Co., 1934, 115 Fla. 189, 155 So. 823; State ex rel. Davis v. Love, 1930, 99 Fla. 333, 126 So. 374; State ex rel. Crim v. Juvenal, 1935, 118 Fla. 487, 159 So. 663; Barr v. Watts, Fla., 70 So.2d 347; Ervin v. Collins, Fla.1956, 85 So.2d 852, and State ex rel. Ervin v. Jacksonville Expressway Authority, Fla.1962, 139 So.2d 135.

In Ervin v. Collins, supra, his...