This аppeal presents the question of whether the judge of a superior court is authorized to grant interlocutory injunctive relief when performing the role of a court of review in an appeаl filed pursuant to the Georgia Administrative Procedure Act, OCGA § 50-13-19.
The appellee, Southern Bell Telephone and Telegraph Company (hereinafter “Southern Bell”), filed an application for а rate increase of $109,325,234 annually with the Georgia Public Service Commission (hereinafter “Commission”). This application was filed on March 30, 1984. The Commission ordered a suspension of the rates for five months from Aрril 30, 1984 and conducted evidentiary hearings as authorized by OCGA § 46-2-25. By orders of September 28, 1984 and October 22, 1984, the Commission granted an increase of $34,661,000 annually.
On October 26, 1984, Southern Bell' filed a petition for review of the Commission’s order pursuant to OCGA § 50-13-19 in the Superior Court of Fulton County. On November 5, 1984, Southern Bell filed a “Motion for Injunction Pending Trial” contending that if interim relief were not granted Southern Bell would suffer irreparable harm. By affidavit they alleged that clear errors in the Commission’s order showed that Southern Bell should be entitled to collect an additional $15,701,000 pending appeal. This motion was opposed by the Commission as well as thе intervenors, Consumers’ Utility Counsel and Georgia Poverty Rights Organization.
The superior court entered an interlocutory injunction and found that Southern Bell would be irreparably harmed if on final appeal the court should determine that the Commission’s order was arbitrary and capricious on any issue because of the utility’s inability to recoup revenue lost in the interim. The court further found that subscribers could be adequately protected by a bond and refund requirement in the event the interim increased rates were determined improper in a final disposition. The court concluded that Southern Bell, by affida *245 vit, had shown a reasonable probability of success on the merits as to four of its alleged errors by the Commission which result in increased revenues of $8,036,000 which the court ordered pending trial. The court’s order also sets оut a rate schedule to be applied for collecting the additional $8,036,000. The order requires that Southern Bell will refund any amounts collected pursuant to the court’s order in excess of the rates finally put into effect.
The superior court issued a temporary stay and the Commission and intervenors filed an appeal and motions for stay and expedited appeal in this court. These motions were granted.
The appellants contend the superior court erred in issuing the injunction on the grounds that: (1) under an appeal filed pursuant to the APA, the statutory remedy, OCGA Ch. 50-13 et seq., is exclusive and such injunctive reliеf as ordered here is not available, (2) the court exceeded its authority in the appeal by substituting its judgment for that of the Commission and by actually setting rates which is constitutionally prohibited, and (3) that if the court hаd discretion to exercise, then its order here was an abuse of that discretion.
Southern Bell contends that the action of the superior court was authorized by the holding of this court in
Southern Bell Tel. &c. Co. v. Ga. Public Service Comm.,
Proceedings of the Public Service Commission were made subject to the Administrative Procedure Act (hereinafter “APA”) in Ga. L. 1975, p. 404. Prior to that timе, orders of the Commission were challenged by filing a suit in equity in the superior court to enjoin enforcement of the Commission’s orders. See
Ga. Public Service Comm. v. General Tel. Co.,
In Southern Bell Tel. &c. Co. the court held that courts of equity, while possessing no rate making power, dо have jurisdiction to enjoin rates that are confiscatory, which result in an unconstitutional taking of property. As a part of this jurisdiction the equity court could set an amount that the utility be allowed to cоllect until the commission acted to set constitutional rates. A specific dollar amount was set in that case because this court found that the amount neces *246 sary to avoid constitutional cоnfiscation was uncontradicted.
The present method available for challenging an order of the Commission is to file an appeal pursuant to OCGA § 50-13-19. When this statutory right of review is available, a comрlaint in equity is not available,
Schieffelin & Co. v. Strickland,
The review under OCGA § 50-13-19 is a review by the judge of the superior court of the record made before the agency. OCGA § 50-13-19 (g). This subsection allows for proof of irregularities before the agency not shown by the record. Subsection (f) provides for cases when a party shows good cause for presentation of additional evidence not presented before the agency. Under subsection (f) if the сourt finds the additional evidence is material and there is good cause shown for failure to present it previously, the court does not take evidence, but may order the agency to hear the еvidence and make a ruling thereon, which is then made a part of the appeal.
Subsection (h) provides as follows:
“(h) The court shall not substitute its judgment for that of the agency as to the weight of the evidence or questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prеjudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”
A review under OCGA § 50-13-19 by the superior court is “appellate in nature and is not ... а ‘pretrial, trial or post trial procedure.’ ”
Howell v. Harden,
The pre-APA cases relied upon by Southern Bell involve not only a complaint in equity, but a de novo review. Under the APA, the Commission is the finder of fact and weighs the credibility of the evidence.
Lasseter v. Ga. Public Service Comm.,
Southern Bell has raised cases from other jurisdictions which have held injunction to be proper. In reviewing these holdings, we find they are not persuasive because the statutes being construed provide for either review by trial in equity or provide for equitable relief. E.g.,
Michigan Consolidated Gas Co. v. Michigan Public Service Comm.,
Subsection (d) of OCGA § 50-13-19 provides that the filing of a petition for judicial review does not stay the agency decision but that “the agency may grant, or the reviewing court mаy order, a stay upon appropriate terms for good cause shown.” We do not view a stay by an “appellate” court as authorizing an interlocutory injunction. An interlocutory injunction is an intermediate step in a trial wherein the court hears the evidence and is the finder of fact. An appellate court does not find the facts, but reviews the facts found by others.
Southern Bell contends that equity mаy intervene in this case because the remedy at law (by statutory review) is inadequate.
Dept. of Natural Resources v. American Cyanamid,
Because of our holding that the remedy of an interlocutory injunction is not available, it is unnecessary to reach the remaining enumerations of error.
Judgment reversed.