Central Louisiana Telephone Co. v. Louisiana Public Service Commission

264 So. 2d 905, 262 La. 819
Supreme Court of Louisiana·Decided July 27, 1972·No. 52434·Published·Cited by 11 cases

Opinions

TATE, Justice.

The central issue is whether, pending judicial review, the courts may enjoin enforcement of an order of the Public Service Commission which requires a utility to provide certain service. The district court held that our state constitution does not permit the courts to afford such interlocutory injunctive relief, except in rate cases. We granted supervisory writs to review this holding. 261 La. 1038, 262 So.2d 33 (1972).

The plaintiff (“Central”) is a telephone utility regulated by the Louisiana Public Service Commission. Central sues (1) for review of an order requiring it to reopen a telephone business office at Glcnmora and (2) for a preliminary injunction to restrain the commission from enforcing this order or applying any sanction 1 against Central [823]*823for refusing to comply with it, pending judicial review of it.

The trial court’s return shows that, despite allegations of irreparable injury, it refused to consider this request for interlocutory injunctive relief. It refused to do so, in the belief that Article VI, Section S of the Louisiana Constitution prohibits interlocutory injunctive relief, pending judicial review, in non-rate cases such as the present.

The first paragraph of this constitutional provision (set forth in full in footnote 2 below 2) provides that Commission orders fixing rates or charges shall go into effect on the date fixed by Commission unless and until set aside by the Commission or a final judgment of the courts. The paragraph concludes that, however, in such cases, restraining orders and interlocutory injunctions may issue under certain conditions. This paragraph applies only to rate cases.

The second paragraph of this constitutional provision (see footnote 2) further provides for appeal of orders of the Commission by suit filed within ninety days. This provision for judicial review applies both to rate and to non-rate cases. The paragraph provides for summary and preferential treatment by trial and appellate courts of these suits for judicial review. The paragraph is silent, however, as to injunctive relief being available pending judicial review, i. e., before a final court judgment.

[825]*825 The Commission’s Construction of Section 5

The trial court accepted the Commission’s argument that, since Section S expressly provides for interlocutory injunctive relief in rate cases, but does not do so for non-rate cases, such injunctive relief is only available for review of the rate determinations by the Commission.

The trial court held that, under the principle inclusio unius est exclusio alterius (The inclusion of one is the exclusion of the other), the constitutional intent was to exclude injunctive relief, before final judgment, during the pendency of any court action to review non-rate orders of the Commission, such as the present. The intent thus demonstrated, it is argued, is to effectuate administrative regulation by the Commission ordering utilities to provide services, without affording the regulated utilities the opportunity to disrupt and cease providing needed utility services through judicial proceedings delaying immediate enforcement.

There is much force to this construction of Section 5. The trial court assigned persuasive reasons for finding the constitutional intent to be to this effect.

Under this construction, a utility or other person regulated by the Commission might be forced under penalty of immediate punishment (see footnote 1) to obey immediately an order of the Commission, which, upon judicial review, is found to be unlawful or improper. There is, under this construction, no way to secure judicial relief temporarily suspending even an order of the Commission unlawful on its face, unless the same Commission which issued the unlawful order agrees to its suspension pending judicial review.3

The Reasons for a Contrary Construction

While conceding the forcefulness of the trial court’s reasoning, a majority of this court has nevertheless concluded that Section 5 should not be thus narrowly construed. In reaching this conclusion, we take into consideration (1) our constitution as a whole, (2) general principles of statutory construction pertaining to state constitutions, and (3) the legislative history of Section 5:

(1) Our state constitution in its entirety expresses repeatedly the principle that every person shall have an adequate remedy in the courts and shall be entitled [827]*827to judicial protection against unlawful acts. La.Const. Art. 1, Sections 2-6; Art. 7, Sections 2, 10, 29. This fundamental attribute of a government of law (rather than of the possible whim of administrative officials) should not, it seems to us, be deemed negated by an ambiguous provision as to a particular narrow issue, at least in the absence of express wording requiring such construction.

(2) The general rule, in construing a state constitution, is that the legislature is supreme except when specifically restricted by that constitution; therefore, the legislature is authorized to provide rights and remedies unless they are prohibited by or contrary to that constitution. Womack v. Louisiana Comm. on Governmental Ethics, 250 La. 833, 199 So.2d 891 (1967); Plebst v. Barnwell Drilling Co., 243 La. 874, 148 So.2d 584 (1963) and decisions cited therein. (The reasoning is that the power of the people of a state, exercised through the legislature, is plenary except where specifically restricted by the state or federal constitutions.)

Thus, in the absence of specific constitutional prohibition, we should not hold that the power of the courts to issue a preliminary injunction during the pendency of a court action, upon a showing of irreparable injury and upon the party furnishing bond and after hearing, recognized by La. C.C.P. Arts. 3601-13, is not available to the present petitioners.

(3) Further, the legislative history of Section 5 does not indicate any express constitutional intent to deprive the courts, in non-rate cases, of the power to issue preliminary injunctions in appropriate instances.

Sections 5 and 6 of Article VI of the Constitution of 1921 were derived from Articles 285 and 286 of the Constitution of 1898, and an amendment of Article 286 by Act 14 of 1907, effective in 1908. (The Constitution of 1913 included them verbatim as Article 285 and, as amended in 1908, Article 286.)

As first interpreted, Commission orders or rate determinations were suspended, without injunction, by the mere filing of a suit for judicial review of them. Kansas City S. Ry. Co. v. Railroad Commission, 106 La. 583, 31 So. 131 (1902).4 How[829]*829ever, following the 1908 amendment to Section 286, the courts held that rate determinations (and, by implication, other orders as well) went into effect at the time provided by the Commission, unless an injunction was secured to suspend their effect. McAdams v. Wells Fargo & Co. Express 139 La. 681, 71 So. 945 (1916), see also intermediate court opinion at 13 Orl.App. 81 (1915).

From 1908, on, the Legislature has by statute provided that non-rate orders, as well as rate determinations, are operative at the time fixed by the Commission, unless changed or set aside by a court of competent jurisdiction. Act 171 of 1908, Section 1; now La.R.S. 45:1191 (1950).

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Central Louisiana Telephone Co. v. Louisiana Public Service Commission, 264 So. 2d 905, 262 La. 819 (La. 1972).

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Central Louisiana Telephone Co. v. Louisiana Public Service Commission
264 So. 2d 905 (Supreme Court of Louisiana, 1972)