127 Va. 612 | Va. | 1920
delivered the opinion of the court.
While the arguments of counsel in this case are thorough and complete, most of the questions so ably discussed are well settled, and the crucial questions involved lie within narrow limits. Without- neglecting the consideration of every authority cited and every fair argument based thereon, we shall omit reference to many of them in our effort to escape a criticism similar to that made by one of the counsel, to the effect that the briefs in this case are overloaded by the industry displayed and the voluminous citations, as well as confused by irrelevant argument and the discussion of uncontested points. The issue to be determined is whether or not the State Corporation Commission (hereafter called the commission) erred in taking jurisdiction of the rates of the appellee company for services performed within the city of Richmond, which the city claims have been prescribed by a contract which is
The city having the right under its charter and by the general law (Code 1887, sec. 1287) to prohibit any telephone company from occupying the streets of the city with its lines without the consent of the council, by ordinance of October 15, 1901, granted a franchise to the Southern Bell Telephone and Telegraph Company, its successors and assigns, giving it the right to occupy the streets of the city with its works for the period of thirty years; and by section eleven of this ordinance the company contracted not to charge for telephone service rates in excess of those set forth in a schedule marked “Schedule of Rates of the Southern Bell Telephone and Telegraph Company,” to be filed with the clerk of the city council. The original company and its successor, the appellee, observed the rates thereby prescribed until the Postmaster-General, under the act of Congress (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115%x), passed pursuant to the war power of the Federal government, took over and. operated the property, and increased these rates. Then, before the government released the property and returned it to its owner the company filed before the commission its petition, asking for still further increases in the rates.
Pending the consideration of this petition, the city denied the authority of the commission over the rates, a,nd as it was evident that the property would be returned to the company November 30, 1919, before there could be any proper investigation of the. questions involved, upon the application' of the company the commission entered an order authorizing it to continue to charge the rates which had been fixed by the Postmaster-General until the commission could itself make the necessary inquiries and prescribe reasonable rates.
The recital of a few general principles which may be regarded as settled, and which are conceded, may be helpful. . [1-3] A State can authorize one of its municipal corporations to establish by an inviolable contract the rates to be charged by a telephone company, or other public service corporation, for a definite term, not unreasonable in point of time, and the effect of. such a contract is to suspend’during the term of the contract the governmental power of regulating the rates. For the very reason, however, that such a contract has the effect of extinguishing for the time being an undoubted power of government, the contract and the authority to make it must clearly and unmistakably appear. All doubts must be resolved in favor of the continuance of the power of the State. It may be stated, as a general rule, that a,n ambiguous or doubtful contract between a telephone company and a municipal corporation as to the rights of the public, will be construed in favor of the public rights. Where express power to fix telephone rates is not given a municipality, it is subject to the general law passed pursuant to the Constitution, and a constitutionally created commission may be authorized by statute to revise rates established by a municipal franchise conferred on a telephone company. The State may direct the company to raise its rates above those fixed bv the franchise, if it is necessary to secure effective service, and so far as the city is concerned there is no constitutional objection on the ground of impairment of a contract obligation. Home Telephone, etc., Co. v. Los Angeles, 211 U. S. 265, 29 S. Ct. 50, 53 L. Ed. 176; Colorado Telephone Co. v. Fields, 15 N. M. 431, 110 Pac. 571, 30 L. R. A. (N. S.) 1088; Woodburn v. Public Service Commission, 82 Ore. 114,
As pointed out in Virginia Western Power Co. v. Commonwealth, 125 Va. 469, 99 S. E. 723, it is essential that the authority to make such an irrevocable contract, superior to the police power of the State, be expressly conferred, or, as stated in Borne Telephone, etc., Co. v. Los Angeles, supra, “for the very reason that such contract has the effect of extinguishing pro tanto an undoubted power of government, both its existence and the authority to make it must clearly and unmistakably appear, and all doubts must be resolved in favor of the continuance of the power.” Numerous other cases can be cited to sustain this proposition.
1. We first inquire, then, whether the Constitution vests the commission with power to preserve the rates of the company in the city of Richmond. Unless withheld by the proviso thereof, section 156-b, in express words and with a circumspection which excludes all doubt of its meaning, confers such power, for it provides that the “Commission shall have the power, and be charged with the duty,” of supervising, regulating and controlling “all transportation and transmission companies” doing business in Virginia,
Reference is made for the city to Constitution, sections 124 and 125, but not- for the purpose of claiming that these sections determine this issue. Section 125 provides that o every franchise granted by a city “shall make adequate provision by way of forfeiture of the grant, or otherwise, to secure efficiency of public service at reasonable rates,
There is certainly nothing in sections 124 and 125 to support such a construction, for manifestly they refer only to grants thereafter made. So that the city can only rely upon the proviso in section 156-b.
Then, of course, there recurs the same and only vital question as to the authority of the city of Richmond at the time the franchise was granted to prescribe rates for telephone companies, for unless such power had been so previously granted, the. proviso has no application thereto. As to whether or not there be any municipality in this State which had been granted such a power before the- Constitution became effective, we are not informed, but it is clear from the authorities that no such power existed unless there is some enactment whereby the State ha,d by express intendment clearly conferred it.
Milwaukee Flec. R. Co. v. Wisconsin Railroad Commission, 238 U. S. 174, 35 Sup. Ct. 820, 59 L. Ed. 1254. The pertinent language of the Wisconsin statute there relied on reads thus: “Any municipal corporation or county may grant to any such corporation * * * the use, upon such terms as the proper authorities shall determine, of any streets, parkways, or bridges, within its limits * Mr. Justice Day stated the. general rule upon the subject as follows:
“The fixing of rates which may be charged by public service corporations, of the character here involved, is a legislative function of the State, and while the right to make contracts which shall prevent the State, during a given period, from exercising this important power, has been recognized and approved by judicial decisions, it has been uniformly held in- this court that the renunciation of a sovereign right of this character must be evidenced by terms so clear and unequivocal as to permit of no doubt as to their proper construction. This proposition has been so frequently declared by decisions of this court as to render unnecessary any reference to the many cases in which the doctrine has been affirmed. The principle involved was well stated by Mr. Justice Moody in Home Teleph. & Teleg. Co. v. Los Angeles, 211 U. S. 265, 273, 53 L. Ed. 176, 29 Sup. St. Rep. 50:
“ ‘The surrender, by contract, of a power of government, though in certain well-defined cases it may be made by legislative authority, is a very grave act, and the surrender*625 itself, as well as the authority to make it must be closely scrutinized. No other body than the supreme legislature (in this case the legislature of the State) his the authority to make such a surrender, unless the authority is clearly delegated to it by the supreme legislature. The general powers of a municipality, or of any other political subdivision of the State, are not sufficient. Specific authority for that purpose is required.”
Then referring to the opinion of the Chief Justice of Wisconsin, saying that, while the term “grant” was used, “he held the grant was to be upon terms such as the municipal authorities might determine, and that this language was more appropriate to the exercise of power by the municipality than to the making of a contract between the parties,” upon this point, Mr. Justice Day continued: “The language. of the section certainly lends itself to this construction, and there is nothing in specific terms conferring the right to contract by agreement between the parties, much less to make such contract during its existence exclusive of any ■further right of the State to act upon the subject in the exercise of its legislative authority. It authorizes the grant of the use of the streets upon such terms as the proper authorities shall determine not upon such terms as the parties in interest shall agree to.” Atlantic Coast, etc., Ry. Co. v. Board of Commissioners, etc. (N. J. Court of Errors and Appeals), 92 N. J. L. 168, 104 Atl. 218; Collingswood Sewerage Co. v. Collingswood, 91 N. J. L. 20, 102 Atl. 901; City of Benwood v. Public Service Commission, supra; State ex rel. City of Billings v. Billings Gas Co., 55 Mont. 102, 173 Pac. 799; City of Dawson v. Telephone Co., 137 Ga. 62, 72 S. E. 508.
The proviso adds nothing to the powers of the cities, but does withhold jurisdiction from the commission in those instances in which express power to prescribe such rates has been otherwise conferred upon the cities.
2. Reverting, then, to the statutory jurisdiction of the commission, we observe that there are certain constitutional provisions which either permit or authorize such legislation. There is certainly nothing prohibitory in the language of section 156-b, which suggests that the legislature itself could not thereafter exercise its reserved power to confer additional jurisdiction upon the commission. As if anticipating that it might at some time be contended that the granting of this power to the commission should be construed as withholding all other power except that which was thereby expressly granted the following section, 156-c, expressly provides that, “The commission may be vested with such additional powers, and charged with such •other duties (not inconsistent with this Constitution) as may be prescribed by law, in connection with the visitation, .regulation or control of corporations, or with the prescribing and enforcing of rates and charges to be observed in •the conduct of any business where the State has the right to prescribe the rates and charges in connection therewith * * 99
The next inquiry then is, whether there is any provision of the Constitution which indicates that the State' thereby surrendered or abandoned to the cities its right to prescribe the rates and charges of telephone companies ? This brings us again to the substance of the argument for the city—■ that is, that proviso does expressly prohibit the prescription of any rates in excess of those fixed in the franchise under consideration. The restriction, however, is that nothing in that section should impair the right which had theretofore been or might thereafter be conferred by law upon the authorities of any city, town or county to pre
It does not and was not intended either to so change the character of such a franchise or contract as to exempt it from the police power of the State, or to abandon or to limit the authority of the State, through the legislature to confer additional powers upon the commission. The State had this general power before the Constitution' was adopted, and cannot be "held to have surrendered any of its powers except as is plainly manifested in the Constitution.
We find nothing else in the proviso referred to, and nothing else in any other section of the Constitution which prohibits the State from exercising its jurisdiction over the rates of public service corporations fixed by municipal franchise theretofore adopted, and we find in section 156-c specific power given the legislature to confer additional powers upon the commission which necessarily include powers in addition to those already conferred by section 156-b, to prescribe rates for public sérvice corporations. Then if, however, we should qualify some of the expressions in the Virginia Western Power Com'pomy Case, ignore the unbroken current of authority to which we have alluded, make some assumptions of fact, take what may be called a liberal view, and say that inasmuch as the only franchises of which we are aware, or that the members of the Constitutional Convention knew of, were similar to this franchise which was
Section 4052 reads thus: “The State Corporation Commission shall have the power and it is charged with the duty of supervising, régulating and controlling all telephone companies doing business in this State in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses thereunder by' such companies, and to that end the commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter directed, such rates,' charges, rules and regulations, and shall require them to provide and maintain all such public, service facilities and conveniences as may be reasonable and just, which rates, charges, rules, regulations, and requirements the commission may, from time to time, alter or amend. All rates, charges, rules and regulations adopted or acted upon by any such company in conflict with those prescribed by the commission within the scope of its authority shall be unlawful and void.”
Section 4054 reads: “Upon complaint by any one aggrieved that any rate, charge or practice established or provided for by any municipal ordinance, franchise or other contract, is unreasonable, unjust, insufficient or discriminatory, the State Corporation Commission shall order a hearing, and if, upon such hearing, it shall find that such complaint is well founded, the said commission shall prescribe and enforce just and reasonable rates, charges, or regulations, in lieu of those complained of.”
These statutes are too clear to need interpretation, and demonstrate that the legislature has thereby exercised such power, if any, as the convention failed to exercise, for the
There are expressions in this opinion which may not accord with certain previous expressions of this court. Virginia Passenger & Power Co. v. Commonwealth, 103 Va. 644, 49 S. E. 995; Northrop & Wickham, Receivers v. Richmond, 105 Va, 335, 53 S. E. 962; Commonwealth v. Richmond, etc., R. Co., 115 Va. 756, 80 S. E. 796. It is sufficient to say as to this what was substantially said in the-Virginia Western Power Company Case, namely, that the-question here involved was neither directly involved nor discussed in any of those cases. It may be said, in addition to this, that all of those cases involve the franchise granted December 23, 1899, by the city of Richmond to the Richmond Passenger and Power Company, and that by the amended charter of that company (Acts 1899-1900, p. 583), the Virginia legislature expressly recognized and ratified the contract made by the common council of the said city with the said company, and also prescribed that, “all lines of railway built by the said company, or owned and operated by it shall be at all times subject to all restrictions and limitations of whatever nature which may now or hereafter be imposed” by the council of said city as to its railway within the limits'of the city. It is possibly because counsel in those cases knew that this franchise contract had been, ratified by the legislature of Virginia previous to the Constitution of 1902, that the questions raised here were not raised in those cases, for while that question is not now before this court, it is appropriate to quote this from Home Telephone Co. v. Los Angeles, 211 U. S. 276, 29 Sup»
While in the evolution of our legal system we may seem to progress with halting steps, it nevertheless is true that our legislatures and courts, either consciously or unconsciously, are always reaching out after perfect justice, if haply they may find it. One manifest result of this constant aspiration and search for the ideal is that the interests of the few must ultimately and invariably yield to the rights of the many.
Without attempting to follow the learned counsel as to all details, or to refer to each of their several arguments upon all questions, some of which are only remotely related to the crucial questions here involved, we have reached these conclusions: '
Affirmed.