Opinion
14296
May 13, 1936.
Before BELLINGER, J., Richland, November, 1935. Order affirmed.
Mandamus proceeding by the City of Columbia against B.J. Pearman, as chairman, and John C. Coney and others, as members of and constituting the Public Service Commission, and others.
The order directed to be reported follows:
This is a petition for a writ of mandamus to require the Public Service Commission to decide a matter brought before it by the City of Columbia.
The status of the proceeding before the commission is set forth in the carefully prepared and well-considered order of the commission (Order No. 2040, Docket No. 1422, dated September 12, 1935), as follows:
"The petitioner, the City of Columbia, has filed its petition against Broad River Power Company, Town of Eau Claire, Town of Arden, and North Columbia Land Company, the respondents, seeking an order from the Commission requiring Broad River Power Company, which now furnishes public transportation in the City of Columbia and its environs, in part by means of street cars and in part by means of motor buses, to discontinue all street car service, and to substitute motor buses in place of the discontinued street car service, so that the public transportation in the City of Columbia and its environs will be wholly supplied by means of motor buses. The suburban towns of Eau Claire and Arden and North Columbia Land Company, a corporation under the laws of the State of South Carolina, are made parties to the proceeding for the reason that Broad River Power Company also furnishes the public transportation in Eau Claire and Arden, and is bounded by a private contract with North Columbia Land Company to maintain and operate certain street car service.
"Upon the filing of the petition the Commission issued an order requiring the respondents to show cause why the prayer of the petition should not be granted, and also providing that the order be published in the public press and that all interested parties be given opportunity to appear and to be heard, either in person or by attorney. Broad River Power Company filed a return acquiescing in the relief sought by the petitioner and joining in the prayer of the petition. The Town of Eau Claire also filed a return joining in the prayer of the petition, but certain private citizens of Eau Claire filed a return protesting against the substitution of motor buses for street cars. The Town of Arden and J. Hughes Cooper, a private citizen of the City of Columbia, filed returns resisting the granting of the relief sought by the petitioner. North Columbia Land Company filed a return in effect expressing its willingness to acquiesce in any action taken by the Commission, provided that the obligation of Broad River Power Company to North Columbia Land Company and to the public to furnish adequate transportation service remain unimpaired.
"The Commission has given the parties in interest a full hearing, and it has given careful consideration to the testimony and arguments presented."
The commission declined to render a decision on the merits. Instead, it ordered "that this cause be held in suspense, without a decision on the merits. * * *" The reason for this somewhat unusual disposition was fully and clearly stated by the commission. In effect, the commission said that it would not be in the public interest to decide the matter at this time, because the commission would lose jurisdiction to regulate the rates and transportation service of Broad River Power Company if it should require or permit a complete substitution of buses for street cars, so that the power company would no longer be furnishing any street railway service within Section 8252-8255 of the Code of 1932. The commission said that these sections would not cover a public transportation service in the City of Columbia supplied entirely by means of motor buses, and that Section 8248 of the Code — which on its face vests the commission with power "to supervise and regulate the rates and service of every public utility in this State" — has been construed by the Supreme Court to be limited to the particular class of public utilities defined in Sections 8252-8255, so that the jurisdiction of the commission cannot be safely predicated on Section 8248. This view of the commission is based on Shealy v. Taylor, 128 S.C. 365, 122 S.E., 491, and Columbia Gaslight Co. v. Mobley, 139 S.C. 107, 137 S.E., 211.
While this mandamus proceeding is directed primarily against the commission, all of the parties respondent to the matter before the commission are made parties respondent here and have been given an option to appear. Only the power company has taken advantage of this privilege. It has filed a return admitting the facts stated in the petition and joining in the prayer thereof.
The City of Columbia contends that the jurisdiction of the commission, in the event of a complete substitution, has been affirmed by the judgment of the Supreme Court in State ex rel. Daniel v. Broad River Power Company et al. (hereinafter sometimes referred to as the Street Car case), 157 S.C. 1, 153 S.E., 537, as explained in City of Columbia v. Tatum, 174 S.C. 366, 177 S.E., 541, 553. In considering the Street Car case, it must be borne in mind that that litigation was before the Supreme Court for a long period of time, during which various unreported orders were passed. One of these — the order of May 16, 1931 — is of great importance on the present question. The relevant portions of this order are quoted by Judge Mann in his circuit decree in the Tatum case, supra. In this connection, also, careful consideration must be given to the order of the Supreme Court dismissing the case and remanding it to the commission for further handling — State ex rel. Daniel v. Broad River Power Co., 166 S.C. 207, 164 S.E., 637.
All of the parties before the commission and the Court on this phase of this long-drawn-out and troublesome matter were parties to the Street Car case, so that, in respect to the conclusiveness of that judgment the difference now goes only as to what was thereby decided.
The commission argues with great earnestness that the only question before the Supreme Court in the Street Car case and in the Tatum case was the question whether a substitution of buses for street cars would impair the obligation of the power company to furnish an adequate transportation service to the City of Columbia and its environs. It says that this question of impairment of obligation by substitution is a different question from that of loss of jurisdiction by the commission, resulting from substitution, and that this latter question was never before the Supreme Court nor considered by it.
Careful consideration of the Street Car case convinces me, however, not only that the two questions were so interwoven that the one could not be decided without the other, but also that the Supreme Court expressly decided the question of the jurisdiction of the commission.
The Street Car case adjudicated the following propositions, amongst others:
(1) That Broad River Power Company must furnish an adequate transportation service to the City of Columbia and its environs during the term of its electric and gas franchises in Columbia and vicinity; as stated by Judge Mann, Broad River Power Company "must ride the people of this community so long as it sells them electricity and gas."
(2) That Broad River Power Company may furnish such public transportation service "by means of electric street cars or electric trolley buses, or gasoline motor buses, or any combination thereof or other means, as the public welfare may require and as may be directed by competent authority in pursuance of the provision of law now or hereafter governing the said transportation services. * * *" (Order of May 16, 1931.)
(3) That the "competent authority" is the Railroad Commission — now named the Public Service Commission. This is made clear by the dismissory order — 166 S.C. 207, 164 S.E., 637. (See discussion by Judge Mann under heading "The Holding of the Supreme Court," City of Columbia v. Tatum, 174 S.C. 366, 177 S.E., 541, at page 546, and particularly of the dismissory order at page 549.) Would the Supreme Court have said that the commission had jurisdiction over the power company's transportation service, and remanded the cause to the commission with authority to allow a complete substitution in the public interest, if such a complete substitution would divest the commission of its jurisdiction? I cannot believe this, and yet the argument of the commission logically goes this far. I think that when the Supreme Court said that the commission had jurisdiction it meant that the commission would continue to have jurisdiction after a complete substitution, as well as before.
While the commission is to be commended for the care and caution that it has exercised, I think that its doubt as to its future jurisdiction in event of a complete substitution arises because of the failure to give full effect to the decision in the Street Car case.
If, however, the question of the statutory jurisdiction of the commission be viewed as a de novo proposition, and effect be given to the Street Car case and the Tatum case only under the doctrine of stare decisis, nevertheless I am of opinion that the jurisdiction exists. The solution of this question from this viewpoint involves a detailed examination of the statutes. All agree that the commission is a statutory tribunal and can exercise only the jurisdiction conferred by statute. If there is any ambiguity in the statutes, it is within the province of the Court to go back to the original acts and trace their history in order to ascertain the intention of the General Assembly. Palmetto Lumber Co. v. Ry. Co., 154 S.C. 129, 151 S.E., 279.
The history of our statutes vesting jurisdiction in the commission shows that various public utilities have been placed under the commission step by step and that at different times there have been different regulatory statutes treating particular utilities, or classes of utilities, separately for the purpose of regulation by the commission. First came the Act of 1882 (17 St. at Large, p. 791), as amended by the Act of 1892 (21 St. at Large, p. 9), regulating steam railroads. Then came Section 14 of Article 9 of the Constitution of 1895 creating the Railroad Commission, and later the Act of Feb. 21, 1898 (22 St. at Large, p. 780), covering telegraph companies. Other statutes relate to other particular utilities or classes thereof. In 1910 (25 St. at Large, p. 564) another Public Service Commission was created and given jurisdiction to fix rates for the urban utilities — water, gas, and electric companies — that had not been regulated before that time. The result was that in 1922 practically all of the utilities then known to experience had been placed under one or the other of the two commissions.
In these circumstances, the Act of March 6, 1922 (32 St. at Large, p. 956) — now Sections 8243-8249 of the Code — reconstituted the Railroad Commission, enlarged its personnel from three members chosen in the general election as provided by Act of Dec. 19, 1892 (21 St. at Large, p. 9), to seven members to be elected by the General Assembly. Section 5 (now Section 8247 of the Code) provided for the consolidation of the two commissions, in part in the following language: "All the powers and duties now devolved by law upon the railroad commission and the public service commission, as now constituted, shall be exercised and discharged by the railroad commission hereby established and the officers of the said railroad commission and the said Public Service Commission, as they now exist, are hereby consolidated into the railroad commission hereby created." Section 6 thereof (now Section 8248 of the Code) vested the commission with power to "regulate the rates and service of every public utility in this State." Section 7 provided for the proration of the expense of the commission among the public utilities subject to the jurisdiction of the commission. This Act was a statute complete within itself, and nothing incident to its adoption suggests that the simple language of Section 6 (now Section 8248 of the Code) was intended to have any less than its obvious meaning and effect. The legislative intention "must be gathered from a literal interpretation of the language of the statute where it is plain and unambiguous." State Co. v. Jones, 99 S.C. 218, 82 S.E., 1048.
While the above-discussed Act of March 6, 1922, carried a general repeal in Section 8, there was no express reference to the Act of 1910 (then Sections 922-925 of the Code of 1912), and the resulting situation, if left alone, would have caused confusion, at least, with respect to the Act of 1910 (Sections 922-925 Code 1912), and as to the jurisdiction over the urban utilities therein specified. This confusion was logically removed by the Act of March 24, 1922 (32 St. at Large, p. 938) — now Sections 8252-8255 of the Code — whereby the duties of the old Public Service Commission were expressly devolved upon the new Railroad Commission. This Act then proceeded to lay down the procedure to be followed by the commission, as well as the utilities covered by its terms, in the exercise of the regulatory powers thereby conferred upon the commission and the rights thereby conferred upon the utilities. It is largely a procedural statute, applicable to the urban utilities therein defined to include "every corporation and person furnishing or supplying in any manner gas, electricity, heat, electric power, water and street railway service, or any of them, to the public, or any portion thereof, for compensation." That certain utilities were classed together for regulation by the commission, primarily to specify the rules of practice and procedure that should be followed in that regulation, was not unusual. In 1925 motorbus and truck lines were separately classed for regulation — see Section 8507 of the Code. A more recent illustration of such a statute, covering only electrical utilities, is found in the Act of April 8, 1932 (37 St. at Large, p. 1497).
The Legislature could not have more clearly indicated its intention that this second statute should not limit the broad powers conferred on the commission by Section 6 of the first Act of 1922 (now Section 8248 of the Code) than it did in Section 2 of the second statute, which, codified as Section 8255, says: "The duties hereby [by Sections 8252-8255], devolved upon said commission are in addition to those now imposed by law upon said railroad commission." This can only mean that the Act of March 24, 1922, adds to and does not subtract from the Act of March 6, 1922. State Co. v. Jones, supra.
Admittedly, Broad River Power Company is a public utility of this State in respect to its transportation service, whatever the instrumentalities employed, as well as in respect to its gas and electric service. For these reasons, I think and hold that Section 8248 will confer jurisdiction on the commission after complete substitution is made; and I further think and told that the power company, after complete substitution, will be a corporation "furnishing in some manner street railway service to the public for compensation," so that the commission will have jurisdiction also under Sections 8252-8255.
What has already been said shows that the Supreme Court in the Street Car case considered that the power company would continue to be rendering "street railway service," within the meaning of Sections 8252-8255, although it might use buses as the means or instrumentalities therefor. The use of buses would not change the character of the company, its public duty, or the character of its transportation service.
Judge Mann so thought and stated in his circuit decree in the Tatum case, under the heading "Additional Contentions." He was considering Sections 8252-8255 alone. He did not take Section 8248 into consideration. What he said in this respect was dicta, but his reasoning is persuasive. Apparently this met with the approval of the Supreme Court, as a more complete approval could hardly be expressed. In addition, the Supreme Court itself took the pains to quote Section 8248 in its opinion and to say, concerning this section, that: "It would be difficult to conceive of a more liberal grant of power." The Attorney General had argued this very question of loss of jurisdiction both on circuit and on appeal, hence I cannot read the Tatum case otherwise than as an affirmation of the views that I have here expressed as to the proper construction of these statutes, and as a departure from the views expressed concerning such construction in the two cases relied upon by the commission. The power company will be performing exactly the same kind of service with buses that it now performs partly with buses and partly with street cars. It will carry the same people to the same points. It will run over the same routes, except as changed by the commission. The only difference is that it will employ improved instrumentalities of transportation. It will continue to be the same company performing the same public service, under the same charter, and in discharge of the same obligation declared by the Supreme Court in the Street Car case. To hold that a change in the instrumentalities of transportation would defeat the jurisdiction of the commission under Sections 8252-8255 would be highly technical and entirely unnecessary.
I think that the dictum in Columbia Gaslight Co. v. Mobley, supra, quoted and relied on by the commission, suggests an inaccurate construction of the statutes. The gaslight company was, by the demurrer, upon which the case was heard, admittedly an "inactive and non-operating lessor corporation." The sole question was whether it was subject to the jurisdiction of the commission under the language of Section 8248. The other reasons and authorities relied upon were sufficient to support the decision of the Court on the point involved, the correctness of which need not be questioned. But in the dictum it is evident that the Court neglected to give effect to the plain language of Section 2 of the second Act of 1922, 32 St. at Large, p. 943 (now Section 8255).
In Shealy v. Taylor, supra, also relied upon by the commission, it seems apparent that the Court failed to give any effect to Section 8248, since that section was not cited or considered in either the opinion on circuit or on appeal. While that case was correctly decided as to the statute considered (Sections 8252-8255), effect was not given to Section 8248. This is evidenced by the fact that in 1925 another statute was enacted specifically regulating motorbus and truck lines — see Section 8507, Code, et seq. In any event, the character of the utility there in question was essentially different, and the decision is not controlling here in view of the Street Car case and the Tatum case.
In Rathbun v. U.S., decided May 27, 1935, 295 U.S. 602, 55 S.Ct., 869, 873, 79 L.Ed., 1611, the Court said:
"Chief Justice Marshall, who delivered the opinion in the Marbury case [1 Cranch, 137, 2 L.Ed., 60], speaking again for the Court in the Cohens case [6 Wheat., 264, 5 L.Ed., 257], said:
"`It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.'"
Broad River Power Company is admittedly an active public utility corporation, furnishing gas, electricity, and transportation service to this community. The commission now has jurisdiction to regulate its rates and service as to gas (under Section 8248 and Sections 8252-8255), as to electricity (under the Act of 1932 — 37 St. at Large, p. 1497 — ), and as to transportation now rendered partly by buses and partly by street cars (under Sections 8248 and 8252-8255). It is conceded before me that the commission has repeatedly exercised jurisdiction to regulate the service and rates as to the existing bus service. I do not think that the jurisdiction of the commission will be defeated if the transportation service be furnished entirely by buses. There is no suggestion that the power company ever intends to advance such a contention. On the hearing before me, it denied any such intention, and it was agreed that the power company had done all within its power to allay any fear of the commission in this respect.
The city is entitled to the writ. The commission was under a plain ministerial duty to render a decision on the merits. It has expressly refused to decide. Mandamus is the proper remedy. No control of the discretion of the commission is involved. 38 C.J., 657, 678; see particularly Atlantic Coast Line R. Co. v. R.R. Commission, 89 S.C. 472, at page 482, 72 S.E., 18. The commission has declined to decide because of the fear of a prejudicial result to the public interest by reason of the commission's loss of jurisdiction. This fear is groundless, and the erroneous legal view taken by the commission is no excuse. Work v. U.S. ex rel. McAlester Edwards Co., 262 U.S. 200, 208, 43 S.Ct., 580, 67 L.Ed., 949, 953.
The commission cites Ex Parte Hollis, 82 S.C. 230, 64 S.E., 232, in support of its contention that neither Section 8248 nor Sections 8252-8255 impose any duty to decide — that they merely west the commission with power to decide. The cases are essentially different. The statutes carry an implied mandate that the commission shall decide matters properly submitted and within its jurisdiction. This is the primary purpose of the existence of the commission. Probably no constitutional or statutory provision, vesting jurisdiction in a Court, says expressly that the Court shall decide cases brought before it. Yet no Court has ever denied its duty to render decisions in actions within its jurisdiction.
Various statutes vest the commission with jurisdiction over matters of the greatest importance and economic consequence to the many utilities subjected to the supervision of the commission, and also to the general public. It is the positive duty of the commission to decide matters properly submitted within its jurisdiction without unreasonable delay.
It is, therefore, ordered: (1) That the prayer of the petition be granted; (2) that the respondents constituting the commission do forthwith make and render a decision on the merits on the petition of the City of Columbia now before them; (3) that plaintiff have leave to apply to this Court for such further orders of writs as may be necessary to secure it in the relief to which it is entitled.
Mr. A.F. Woods, for appellants, cites: Commission limited to authority given by statute: 211 U.S. 210; 53 L.Ed., 150; 212 U.S. 1; 53 L.Ed., 371; 230 U.S. 352; 57 Law Ed., 1511; 289 U.S. 287; 77 L.Ed., 1180; 139 S.C. 107; 128 S.C. 365. Public utility defined: 28 S.C. 401; 73 S.C. 572; 78 S.C. 13. Remedy of mandamus: 81 S.C. 414; 82 S.C. 230; 93 S.C. 281; 79 L.Ed., 308.
Messrs. W.C. McLain and J.B.S. Lyles, for Broad River Power Company.
Mr. Paul A. Cooper, for respondent, cites: As to jurisdiction of commission: 174 S.C. 366; 177 S.E., 541; 166 S.C. 207; 164 S.E., 637.
May 13, 1936. The opinion of the Court was delivered by
The appeal taken in this cause is from an order of Judge Bellinger, dated November 20, 1935, directing the Public Service Commission to pass on the merits of a petition previously filed with it by the City of Columbia, by which it was sought to have the commission require the Broad River Power Company, then and now furnishing the public transportation in the city, partly by means of street cars and partly by motor buses, to discontinue all street car service and to substitute in lieu thereof service wholly by means of motorbuses. The well-prepared circuit decree, which will be reported, sufficiently states the pertinent facts and the issues involved.
Counsel for the members of the commission, appellants here, has filed with the Court a very strong and persuasive argument. He contends that the Circuit Judge was in error in holding that the Public Service Commission would have jurisdiction to regulate public transportation in the City of Columbia supplied entirely by means of motorbuses. Three main points are made in support of this contention: (1) That the cases of Shealy v. Taylor, 128 S.C. 365, 122 S.E., 491, and Columbia Gaslight Company v. Mobley, 139 S.C. 107, 137 S.E., 211, are controlling of the question. (2) That the authorities relied on by the Circuit Judge do not support the conclusions reached by him. (3) That in any event, all doubt is set at rest by the Motor Bus Act of April 8, 1925 (34 St. at Large, p. 252).
As to the Shealy case, while it is true that the Railroad Commission there contended that authority, under the Acts of the General Assembly, had been given it to supervise and regulate all public utilities operating in this State, the decision of the Court was rested upon the Act approved March 24, 1922 (32 St. at Large, p. 938), and it does not appear that what is now Section 8248 of the Code was considered or passed upon in connection therewith.
Columbia Gaslight Company v. Mobley, supra, however, appears to be more directly in point. The Court there did consider what is now Section 8248 (Section 6 of Act approved March 6, 1922, 32 St. at Large, p. 956), and held that, as this section did not define what are "public utilities" within the meaning of this term as used in the statute, and as the statute was elsewhere silent as to what corporations this classification included, it was necessary, in order to correctly interpret the legislative intention, to construe this Act in connection with the Act approved March 24, 1922 — with especial reference to what is now Section 8252 of the Code.
With regard to the last-named case, Judge Bellinger held that the portion of the decision relied on by the commission was dictum, and stated that this dictum "suggests an inaccurate construction of the statutes." Whether he was right in these conclusions or not seems immaterial, as a later decision of this Court has set at rest the question whether the commission has authority under Section 8248 to make substitution of bus service for street car service. In City of Columbia v. Tatum, 174 S.C. 366, 177 S.E., 541, 553, the issue was whether the Railroad Commission had jurisdiction to make such substitution on Shandon Annex line, from the intersection of Sumter and Gervais Streets to the southeastern terminus of that line, which contemplated only a partial substitution. The commission at first granted the petition, but on a rehearing of the matter reversed its former orders upon the ground that it was without jurisdiction to give the relief prayed for. Suit was then instituted by the city against the commission. Circuit Judge Mann, who heard the matter, in a very able decree reviewed the history of the street railway litigation in Columbia and the gradual substitution of buses for street car service, and reached the following conclusion: "Careful study of the reported and relevant unreported opinions and orders of the Supreme Court convinces me that the Supreme Court has decided that substitution may be safely made." On appeal the decree was affirmed, this Court stating, however, that it would not be amiss to add that the jurisdiction of the Railroad Commission was further sustained by the provisions of Section 8248 of the Code, quoting that section. It then said: "It would be difficult to conceive of a more liberal grant of power. It is sufficient to embrace that power which the Railroad Commission exercised in these premises, which is approved by the circuit decree."
Upon full consideration of the question, we are of opinion that, if the commission has authority, as held in the Tatum case, to make substitution in part under Section 8248, it is empowered by the same section to make entire substitution; and when it has done so, the Public Service Commission will have full power and jurisdiction, under the provisions of that Section (8248), to supervise and regulate public transportation in the City of Columbia supplied wholly by means of motor buses. Should this holding appear to run counter to any former decision of this Court, then such decision is overruled to that extent.
We have read with interest the argument of counsel with respect to point (3). We are of opinion, however, that the provisions of the Motor Bus Act of 1925 (Sections 8507- 8530, Code of 1932) do not apply here. That Act (34 St. at Large, p. 252) provides for the regulation of motor vehicles "used in the business of transporting persons or property for compensation over any improved public highway * * * in this State," and covers, with amendments, the state-wide bus and truck lines doing business as common carriers and contract haulers over these highways. Nor do we think that the 1935 amendment to Section 8522 (Act April 24, 1935, 39 St. at Large, p. 349) has the effect claimed by counsel for the appellant. It appears that this amendment was merely intended to enlarge the exception contained in that section. In any event, it has no bearing on the question before us, as the commission's jurisdiction here, as indicated, is found in other sections of the Code.
The appellants also contend that this is not a proper case in any event for the drastic remedy of mandamus. While it is true that this power should be exercised by the Courts with circumspection and caution, we think, for the reasons stated by the Circuit Judge in his decree, that it was properly used in this case.
The order appealed from is affirmed.
MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.
MR. JUSTICE CARTER dissents.