Mountain States Telephone & Telegraph Co. v. Public Service Commission

155 P.2d 184, 107 Utah 502, 1945 Utah LEXIS 88

• Court: Utah Supreme Court
• Decided: January 9, 1945
• Docket: No. 6724.
• Status: Published

Opinions

McDonough, justice.

This case arises out of Mountain States Telephone & Telegraph Co. v. Public Service Commission, 105 Utah 230, 142 P. 2d 873, rehearing denied 105 Utah 266, 145 P. 2d 790, wherein this court reviewed by certiorari an order of the commission reducing toll rates charged by the utility for intrastate service. We set aside the order of the commission and remanded the case to it.

At the time the petition for certiorari was filed, the utility also filed a petition for stay of the commission’s order. This court ordered that upon filing of a suspension bond by the utility, the commission’s order be stayed. It was also ordered that the utility make monthly payments into a joint account in the names of the utility and the commission, in a local bank, of all sums collected in excess of the amounts which the ratepayers would have been required to pay if the order of the commission had not been stayed. This fund was impounded “until final decision in this case.” When this court set aside the commission’s order and denied the petition for rehearing, the utility discontinued making payments into the fund impounded and requested the commission to allow withdrawal of the money. The commission refused, and the utility filed a petition for writ of mandate to compel the commission to allow the company to obtain the impounded fund. The issues raised by such petition and the answer thereto, are here for decision.

The first argument of the utility is that “to be impounded until the final decision in this case” means until 105 Utah 230, 142 P. 2d 873 was finally decided by this court —which occurred with denial of the petition for reheáring. In answer the commission contends that this court merely set aside the commission’s order and sent the case back to it for further consideration and proceedings; that any further hearing is merely a continuation of the original case. In others words, the commission’s contention is that the phrase set out above should be read as “to be impounded until the final decision of this controversy.” This involves an interpretation of Sec. 76-6-17, U. C. A. 1943.

We therefore address ourselves to its meaning, keeping in mind one of the cardinal rules of statutory construction, viz., that the interpretation must be based on the language used, and that the court has no power to rewrite a statute to make it conform to an intention not expressed.

“The legislative intent being plainly expressed, so that the act read by itself, or in connection with other statutes pertaining to the same subject, is clear, certain and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms. * * * If a legislative enactment violates no constitutional provision or principle, it must be deemed its own sufficient and conclusive evidence of the justice, propriety and policy of its passage.” 2 Lewis’ Sutherland Statutory Construction (2nd Ed.) p. 701.

Section 76-6-17, supra, must, of course, be construed in its context. The provisions of the preceding section (76-6-16) are deemed relevant. The pertinent provisions of such sections (emphasis supplied by the writer) follow:

“76-6-16. Within thirty days after the application for a rehearing is denied, or, if the application is granted, within thirty days after the rendition of the decision on rehearing, the applicant or any party to the proceeding deeming himself aggrieved by such order or decision rendered upon rehearing may apply to the supreme court for a writ of certiorari for the purpose of having the lawfulness of the original order or decision, or the order or decision on rehearing, inquired into and determined. * * * The review shall not be extended further than to determine whether the commission has regularly pursued its authority, including a determination of whether the order or decision under review violates any right of the petitioner under the constitution of the United States or of the state of Utah. The findings and conclusions of the commission on questions of fact shall be final and shall not be subject to review. Such questions of fact shall include ultimate facts and the findings and conclusions of the commission on reasonableness and discrimination. * * * Upon the hearing the supreme court shall enter judgment either affirming or setting aside the order or decision of the commission. * * * No court of this state (except the supreme court to the extent herein specified) shall have jurisdiction to review, reverse, correct or annul any order or decision of the commission, or to suspend or delay the execution or operation thereof, or to enjoin, restrain or interfere with the commission in the performance of its official duties; provided,, that the writ of mandamus shall lie from the supreme court to the commission in all proper cases.” (Italics added.)

“76-6-17. (1) The pendency of a writ of review shall not of itself stay or suspend the operation of the order or decision of the commission, but during the pendency of such writ the supreme court in its discretion may stay or suspend, in whole or in part, the operation of the commission’s order or decision.

“(2) No order so staying or suspending an order or decision of the commission shall be made by the supreme court otherwise than upon three days’ notice and after hearing, and, if the order or decision of the commission is suspended, the order suspending the same shall contain a specific finding, based upon evidence submitted to the court and identified by reference thereto, that great or irreparable damage would otherwise result to the petitioner, and specifying the nature of the damage.

“(3) In case the order or decision of the commission is stayed or suspended, the order of the court shall not become effective until a suspending bond shall first have been executed and filed with and approved by the commission (or approved, on review, by the supreme court) payable to the state of Utah, and sufficient in amount and security to insure the prompt payment by the party petitioning for the review of all damages caused by the delay in the enforcement of the order or decision of the commission, and of all moneys which any person or corporation may he compelled to pay, pending the review proceedings, for transportation, transmission, product, commodity or service in excess of the charges fixed by the order or decision of the commission, in case said order or decision is sustained. The supreme court, in case it stays or suspends the order or decision of the commission in any matter affecting rates, fares, tolls, rentals, charges or classifications, shall also by order direct the public utility affected to pay into court from time to time, there to be impounded until the final decision of the case, or into some bank or trust company paying interest on deposits, under such conditions as the court may prescribe, all sums of money which it may collect from any person in excess of the sum such person would have been compelled to pay, if the order or decision of the commission had not been stayed or suspended.

“(4) In case the supreme court stays or suspends any order or decision lowering any rate, fare, toll, rental, charge or classification, the commission upon the execution and approval of such suspending bond shall forthwith require the public utility affected, under penalty of the immediate enforcement of the order or decision of the commission pending the review and nothwithstanding the suspending order, to keep such accounts, verified by oath, as may in the judgment of the commission suffice to show the amounts being charged or received by such public utility pending the review in excess of the charges allowed by the order or decision of the commission, together with the names and addresses of the persons to whom overcharges will he refundable, in case the charges made by the public utility pending the review are not sustained by the supreme court. The court may from time to time require such party petitioning for a review to give additional security or to increase the said suspending bond whenever in the opinion of the court the same may be necessary to insure the prompt payment of such damages and such overcharges. Upon the final decision by the supreme court all moneys which the public utility may have collected pending the appeal in excess of those authorized by such final decision, together with interest in case the court ordered the deposit of such moneys in a bank or trust company, shall be promptly paid to the persons entitled thereto in such manner and through such methods of distribution as may be prescribed by the commission. * * *” (Italics added.)

First to be noted in Sec. 76-6-16 is that it is the lawfulness of the order of the Commission which is to be “inquired into and determined.” Upon determining that the order under review is or is not “lawful,” within the meaning of such term as defined by the legislature, this court “shall enter judgment either affirming or setting aside” the order of the commission.

We shall advert hereinafter to this limitation of power, but at this point shall proceed to an examination of Sec. 76-6-17. This section has reference to a stay of the order or decision of the commission during the pendency of. the writ of revieto, the conditions thereof and the disposition of a fund impounded in compliance with such conditions. The first condition imposed 'is the furnishing by the petitioner of a bond sufficient in amount to insure prompt payment by petitioner of

“all moneys which any person or corporation may be compelled to pay, pending the review proceedings, for * * * commodity or service in excess of the charges fixed by the order or decision of the commission, in case such order or decision is sustained.”

It is submitted* that the meaning of such provision is plain; its intendment without doubt. Thereunder, it could not be successfully asserted that the surety on a bond drawn in the terms of the statute would be liable thereon in case the order or decision of the Commission were not sustained, but were set aside. For, it is only where the order or decision of the Commission is sustained that the surety undertakes to do anything.

The statute goes on to provide that the utility shall, as a condition of a stay, pay into court or into a bank under conditions to be prescribed by the court, all moneys collected from any person in excess of those prescribed by the order under review. Such money is “to be impounded until the final decision of the case.” Note that the provision just referred to relative to the impounding of the fund, is contained in the sentence next to that specifying the amount and conditions of the bond required to be furnished as a prerequisite to a stay. The two sentences contain the conditions prescribed by the legislature as the prerequisites — whether but the minimum requirements or not we need not here determine — for the granting of a stay by this court. But, as pointed out here-inabove, the surety on the bond of the utility undertakes that said utility will make prompt payment of the excess to any person who, pending the review, pays an amount for service in excess of that fixed by the order of the Commission, only in case the order or decision of the commission is sustained. It seems reasonably clear that it was not the legislative intent that the fund paid into court by the utility might be distributed to rate payers should the order under review be set aside; but that the surety on the bond (conditioned on payment to the rate payer of amounts in excess of those provided by the Commission’s order) be freed of liability in such circumstance.

The meaning of subsection (3) of 76-6-17, supra, it is submitted, is clear; the liability of the surety on the bond therein provided for and the payment to the rate payer out of moneys impounded is conditioned upon the order or decision of the Commission being by this court sustained.

Nor do the provisions of Sec. 76-6-17(4) becloud that meaning. Read in light of subsection (3), subsection (4) is free from ambiguity. It deals first with the duty imposed upon the utility to keep accounts showing the charges made by the utility for a service in question

“together with the names and addresses of the persons to whom overcharges will be refundable, in case the charges made by the public utility pending the review are not sustained by the Supreme Cou/rt.” (Emphasis added.)

The quoted provision presents difficulties to some members of the court. Viewed in light of the subject matter of Sec. 76-6-17 the staying of the order of the Commission pending review; and of subsection (3) any ambiguity is resolved. It is urged by the Commission that this court did. not sustain the charges made by the utility pending review; that we in fact held that such charges were discriminatory. This position misconceives the function of this court in reviewing an order of the Commission. We, of course, in rendering our decision, acted within the scope of our authority. Consequently, we determined merely that the Commission had not regularly pursued its authority. Everything else stated in our opinion was in response to contentions of the plaintiff relative to confiscatory rates, arbitrary action by the Commission in respects other than those by us sustained, etc. But because we in the rationale of the opinion found that such contentions should be overruled, it does not follow that we determined that the rates charged by the utility were unjust, unreasonable or confiscatory. We did not so determine simply because that is not our function. Indeed, it is not a judicial function. It is legislative and is to be exercised by the arm of the legislature — the Public Service Commission.

Having determined that the commission in certain respects had acted arbitrarily, though we likewise determined that in other respects it had correctly pursued its authority, we set its order aside. The sections of the statutes under examination were enacted together in the same bill, Senate Bill 46. See Laws of Utah 1917, p. 128. Obviously in adopting Sec. 76-6-17 the legislature was aware of the limited jurisdiction of this court in reviewing an order of the commission conferred by Sec. 76-6-16. Even if this were not conclusively presumed, absent some unequivocal evidence of the contrary in the legislation itself, nevertheless the sections in question would be ample evidence of that fact. The sections provide, in case of a stay, (1) for the impounding of a fund; (2) for keeping proper account of such fund and the source from which it accumulated; and (3) for the disposition of such fund in case (a) the decision of the commission is set aside or (b) the decision of the commission is sustained — the only two possible dispositions of the review by this court. Under sub section (3) of Sec. 76-6-17, as has been shown, the impounded money is to be returned to the ratepayers, in ease, and only in case, the decision or order of the commission is sustained. So, under subsection (4) requiring that the names and addresses of persons to whom overcharges are to be refunded in case “the charges made by the public utility pending the review are not sustained by the supreme court,” the legislature had in mind the two possible outcomes of the review proceedings. If the decision of the commission be sustained, then the charges made by the utility pending the review are not sustained by the supreme court. In such case we find that the rates fixed by the commission are the legal rates — rates promulgated by a valid order of the commission. Hence, the money impounded consists of overcharges. But should we set aside the order, hold it invalid, then the charges made by the utility pending review are by us sustained — not, indeed, as reasonable, just and non-discriminatory; since determination of whether they are or are not such is not our province; but simply as rates which, absent a valid order of the commission promulgating others, the utility was legally authorized to charge. They are not overcharges within the meaning of the statute. The same reasoning applies to the expression in the subsection referring to moneys collected “in excess of those authorized by such final decision.”

If the foregoing analysis of the statute be valid, then any contention to the effect that the provision in subsection (3) of Sec. 76-6-17 that the money be “impounded until the final decision of the case,” means that it be held until the final decision of the controversy must fail. It is clear to us beyond doubt that such words mean until the final decision of the supreme court. The words “final decision of the case” themselves mean, without any contextual modification, the case in the supreme court — that case or proceeding initiated by petition for a writ of review and concluded by decision of this court.

But the contention is made that this court did in fact remand the case to the Commission “for a determination as to what would be a reasonable and just rate for intrastate toll service” and hence that the case is not concluded. The remand, however, was obviously merely formal. Ample authority exists in the Commission to determine reasonable rates. The authority comes from the legislature not from this court. It must be clear that we did not thus offhandedly assume authority which this court has consistently asserted was not by the legislature conferred upon it. Nor does the fact that by the provisions of Sec. 76-8-1, U. C. A. 1948, every unjust and unreasonable charge made by a utility for services is prohibited and made unlawful, confer authority upon this court to modify an order of the Commission or to uphold an order in part and set it aside in part. This for the reason that the determination of whether a rate or charge is unreasonable or unjust is placed by law in the Commission and not in the courts.

The Commission in an excellent and informative brief argue that this court, having granted a stay and having impounded a fund, has the authority by virtue of its equitable powers and a duty in the exercise of such powers to hold the fund intact until it be determined by the Commission what was a just and reasonable rate to be paid by the consumer and upon such determination order distribution of the fund in accordance therewith to the persons entitled thereto. Well reasoned cases are cited in support of its contention. But, these cases, so far as can be determined from the cases themselves, are from jurisdictions where legislative enactments have not hampered the court in so dealing with the fund. In some of them the power of the reviewing court on review are much greater than that conferred on this court. An example is the case of United States v. Morgan, 307 U. S. 183, 59 S. Ct. 795, 83 L. Ed. 1211. That was a suit in the United States District Court for an injunction against the enforcement of an order of the Secretary of Agriculture reducing scheduled rates for services rendered at the Kansas City Stock Yard. As a condition to granting an interlocutory injunction the court required that the marketing agencies pay into court the difference between the rates collected under the schedule and those prescribed by the order of the Secretary. Under the decision of the United States Supreme Court reversing the lower court which ordered the impounded fund turned over to the marketing agencies upon the order of the Secretary being set aside, it was in effect ordered that the trial court hold the fund and distribute it in the manner here contended for by respondent after the determination by the Secretary of a proper rate for the period during which the fund was collected. In such case it was under the equity power of the court that the fund was collected. The suit, itself, was a suit in equity, not a review of the order. Similar powers of review were involved in many of the cases cited.

But in the instant case the question of the disposition of the fund does not hinge alone upon the limited power of review of the order of the Commission. That which prevents us from holding the fund and subsequently distributing it as equity dictates, is the explicit mandate of the legislature, unless it be held that despite such mandate we may nevertheless exercise such jurisdiction. From the analysis heretofore made of the statute in question it seems clear that the legislative intent is: (1) That the fund be made up of the amounts collected by the utility, pending the review, in excess of those fixed by the order of the Commission under review; (2) that upon decision by this court setting aside or affirming the Commission, no further payments are to be made into the fund; (3) that the moneys impounded are to be paid to those entitled thereto, upon final decision by this court; (4) that such moneys are to be refunded to the rate payer only in case the order or decision of the Commission is affirmed; (5) that the utility has collected no “overcharge” if the order or decision of the Commission be set aside; (6) that if there be no “overcharge” there is no fund to distribute. If such be the legislative intent, then, since in the review proceed ings we set aside the order of the Commission, there is no fund upon which our equitable powers may operate.

Nor can there be any question that the legislature might specifically provide for disposition of the fund impounded under order of the court. 'It clearly might prescribe that rates fixed by the Commission be not effective until the period for applying for a writ of review shall expire; or, if petition for such writ be made, until final disposition thereof by this court. There seems no reason, therefore, why it might not likewise prescribe that a fund collected upon compliance with a condition prescribed for a stay be released to the utility in case the order of the commission be set aside.

From what has been said it follows that the fund in question is the property of the plaintiff, and it is the duty of the Commission to take the necessary steps to release it. Let the peremptory writ issue as prayed.

TURNER, J., concurs.