Cumberland Telephone & Telegraph Co. v. State ex rel. Potter

Holden, J.,

delivered the opinion of the court.

This is an appeal by the Cumberland Telephone & Telegraph Company from a judgment of the circuit court of Hinds county, sustaining a writ of certiorari to review an order of the state Railroad Commission fixing telephone rates for services in this state and adjudging said order of the commission to be null and void, and a refusal of supersedeas on this appeal. The case, in short, is as follows:

After a. hearing on an application to the Railroad Commission by the telephone company to increase its schedule of rates to be charged for services in this state, the commission in December, 1922, adopted a schedule of fixed rates and charges for telephone service in this state, and the telephone company thereupon commenced to operate under the new schedule of rates, when the attorney-general, in May, 1923, instituted this suit by petition to the circuit judge for a writ of certiorari to review and annul the order of the Railroad Commission fixing the rates to be charged by the telephone company for services rendered to patrons in this state. The petition for certiorari alleged that the order of the Railroad Commission was null and void upon its face for certain reasons, which we need not now set out. The writ was granted, and on a hearing: thereof the circuit judge rendered a judgment declaring the order of the Railroad Commission null and void, and refused a supersedeas upon appeal.

One of the decisive questions on the appeal, and the only one with which we shall concern ourselves, is whether or not the writ of certiorari will lie to review an order of our state Railroad Commission fixing telephone rates to be charged by the appellant. It is urged by the appellant telephone company that certiorari will not lie to review an order of the commission fixing telephone rates to be charged, because the fixing of rates by that body is legislative in its character, or we may say is a legislative function, and is not reviewable by certiorari; that the order fixing the rates was not judicial, nor guasi-jaAioial, in its character, was not an adjudication of a controverted past or present fact presented for a judicial decision, but the fixing of the rate to be charged was for the future, and therefore legislative, because prospective in its application.

The attorney-general contends the writ of certiorari will lie because the order of the Railroad Commission is gwasi-judicial in its character and relies upon the case of Gulf Company v. Adams, 85 Miss. 772, 38 So. 348, to sustain his position. We have given exhaustive consideration to the case before us, and have carefully reviewed all of the authorities cited by counsel on either side, and we have reached the conclusion the position taken by the appellant is well grounded, and that the writ of certiorari will not lie to review an order of the Railroad Commission fixing rates to be charged by the telephone company.

We think this view is sound, and may be rested upon, the sole ground that the order of the .Railroad Commission fixing the telephone rates was a legislative act pure and simple, and, under sections 90 and 91, Code of 1906 (sections 72 and 73, Hemingway’s Code), no appeal, or certiorari, lies from the order of the commission while exercising a legislative function. The authorities overwhelmingly support this view, and Gulf Co. v. Adams, supra, is not in conflict therewith. I. C. R. Co. v. Dodd, 105 Miss. 23, 61 So. 743, 49 L. R. A. (N. S.) 565; Boards v. Melton, 123 Miss. 615, 86 So. 369; 5 R. C. L. 252; Wulzen v. Board, 101 Cal. 15, 35 Pac. 353, 40 Am. St. Rep. 17, note pages 29, 34 and 36; Degiovanni v. Public Service Commission, 45 Nev. 74, 197 Pac. 582; 4 R. C. L. 608; Prentis v. Atlantic Coast Line R. Co., 211 U. S. 210, 29 Sup. Ct. 67, 53 L. Ed. 151; L. & N. R. Co. v. Garrett, 231 U. S. 298, 34 Sup. Ct. 48, 58 L. Ed. 229.

We do not feel able to add anything to the discussion of the question by counsel of whether the order of the Bailroad Commission in this case was judicial or legislative, and will only say that it seems clear to us it was a legislative act, applicable only to the future — was not a judicial decision of a present or past fact in controversy and demanding adjudication. In the Gulf Co. v. Adams case, it would appear at first sight that the court allowed the writ of certiorari to review the order of the Bailroad Commission fixing a rate for privilege taxation, and in that way similar to the case before us, but on a careful review of the Gulf Company case it will be observed the commission was there adjudicating a present or past fact, in that it decided the classification of the railroad for privilege taxes. There was a dispute and a judgment there; an administrative or legislative order here. The board did not undertake to fix any rates of taxation, but merely determined the class of the railroad for privilege taxation, which taxation was fixed upon that class by the legislature, and not the commission. This was the exercise of a quasi-judicial jurisdiction.

It will be noticed in that opinion the court considered the order of the commission as an adjudication of a judicial question in controversy, and not as an effort to fix rates for future application. Therefore the Gulf Co. case, in our judgment, does not sustain the position of the attorney-general, and is not in conflict with the views that we have expressed hereinbefore. As pointed out above, we are not concerned here with the validity of the order of the Railroad Commission fixing the rates. The rates may be unreasonable and the order void upon its faeej but this is a question to be dealt with by the Railroad Commission and not by this court now.

The judgment of the lower court is reversed, and the suit dismissed.

Reversed and dismissed.