Savannah Electric & Power Co. v. Georgia Public Service Commission
Savannah Electric & Power Co. v. Georgia Public Service Commission
Opinion of the Court
This appeal is brought by Savannah Electric & Power Company ("SEPCO”) from an order of the superior court upholding the validity of a certain rate order set by the Public Service Commission for SEPCO.
During the spring of 1975, SEPCO applied to the Public Service Commission for authority to increase its rates by $6,675 million. Intervenors, Savannah Industry Energy Users Association ("SIEUA”) entered the proceeding, which concluded in the commission’s order of August 25,1975, granting a rate increase of $3.8 million. SEPCO did not file suit challenging this award. Subsequently, however, the Consumer’s Utility Counsel filed suit challenging certain procedures incident to the rate award, naming SEPCO and the commission as defendants. SEPCO then counterclaimed against Consumer’s Utility Counsel challenging the constitutionality of the Act creating his office, and cross claimed against the commission alleging that the rate was unreasonable and confiscatory. Trial de novo in superior court was held in February, 1976.
The trial court’s subsequent order first ruled that SEPCO’s constitutional attack against the Consumers’ Utility Counsel Act was good; andConsumers’Counsel was not entitled to participate in the proceedings (though by agreement of all parties, to obviate necessity for retrial, counsel did participate in making the record in the superior court). The court then found the rate set not to be
The principles governing this appeal are easily stated, though not so easily applied. "If a rate order issued by the commission does not authorize a regulated utility to earn an amount to sufficiently compensate its investors reasonably, to maintain its credit, to attract capital, and to maintain the requisite level of services, then it is the duty of the judiciary to set aside such rate order as confiscatory and violative of substantive due process of law.” Ga. Power Co. v. Ga. Public Service Comm., 231 Ga. 339, 341 (201 SE2d 423) (1973). However, there exists a presumption that the rate set by the commission is reasonable. Federal Power Comm. v. Hope Natural Gas Co., 320 U. S. 591, 602 (1944); Ga. Power Co. v. Allied Chemical Corp., 233 Ga. 558, 572 (212 SE2d 628) (1975). The utility challenging the rate must carry the burden of showing clear confiscation. Southern Bell Tel. & Tel. Co. v. Ga. Public Service Comm. 203 Ga. 832 (7) (49 SE2d 38) (1948); Ga. Public Service Comm. v. Ga. Power Co., 182 Ga. 706, 716 (186 SE 839) (1935).
Although eight separate enumerations of error are asserted, the thrust of SEPCO’s argument here is that the
SEPCO’s evidence was certainly adequate to show that the company was financially distressed prior to the new rate order. However, the financial position has been substantially improved under the new order. SEPCO bonds have once again been rated by Moody’s Investor’s Service which had previously refused to list them; a dividend has been resumed at 10 cents and raised to 15 cents; SEPCO marketed in October, 1975, $20 million in
The superior court testimony of SEPCO’s own board chairman and chief executive officer was that ". . . all electric utilities have had problems in the capital market. All industry has had trouble in the capital market in the last couple of years . . .,” though it was clear that some utilities are more able than SEPCO to market both debt and equity issues. Witness Harrison Clark, head of the corporate finance department of Johnson, Lane, Space, Smith & Co., testified in the superior court that SEPCO’s financial position was currently better than in 1974 or 1975. Witness Michael Drazen, a public utility regulation consultant, testified that he saw no unreasonable difference between the operating income after taxes of $14,780,000, which SEPCO claimed it needed and the $14,609,000 figure achieved.
This discussion is adequate to show that SEPCO has failed to prove confiscation by clear evidence. The sole remaining claim is that SEPCO has been denied equal protection by the commission’s application to it of an accounting or rate making method with respect to certain items, which assertedly is less beneficial to it than one recently allowed Georgia Power Company.
We are not in the rate-making business, but it is clear that those who are, namely, the commission, must be prepared to deal with each utility and its customers in a highly individualized fashion. Equal protection does not demand exact equality, in any event. As we wrote in Ga. Power Co. v. Allied Chemical Corp., 233 Ga. 558, 559,
Judgment affirmed.
Reference
- Full Case Name
- SAVANNAH ELECTRIC & POWER COMPANY v. GEORGIA PUBLIC SERVICE COMMISSION
- Cited By
- 4 cases
- Status
- Published