597 N.E.2d 188 | Ohio Ct. App. | 1992
On April 2, 1991, Columbus Southern Power Company ("Columbus Southern") filed an application with the Public Utilities Commission of Ohio ("PUCO") requesting a significant increase in the rates Columbus Southern charges its customers for electrical service. When the better part of two hundred seventy-five days had elapsed, Columbus Southern filed with PUCO an undertaking, pursuant to R.C.
"If the proceeding on an application filed with the public utilities commission under section
"The undertaking must be signed by two of the officers of the utility, under oath, and must contain a promise to refund any amounts collected by the utility over the rate, joint rate, toll, classification, charge, or rental, as determined in the final order of the commission. All refunds shall include interest at the rate stated in section
"If the public utilities commission has not entered a final order within five hundred forty-five days from the date of the filing of an application for an increase in rates under section
"Nothing in this section shall be construed to mitigate any duty of the commission to issue a final order under section
In response to Columbus Southern's undertaking, PUCO issued an entry indicating its intention to require customer-specific refunds for any sums collected by Columbus Southern in excess of the rate ultimately allowed.
Before the higher rate could actually be collected, the City Attorney of Columbus, the Ohio Consumers' Counsel, and an individual customer of Columbus Southern, Marvin E. Rothhaar, filed a lawsuit in the Court of Common Pleas of Franklin County, Ohio, seeking to bar collection of the higher rate on the theory that R.C.
A judge of the court of common pleas restrained collection of the increased rates while the litigation was pending.
Columbus Southern sought a writ of prohibition in the Supreme Court of Ohio, but the writ was denied. See State ex rel.Columbus S. Power Co. v. Sheward (1992),
The issues were subsequently presented to the trial court based upon stipulated facts and, on February 7, 1992, the assigned judge filed a decision and entry which indicated that R.C.
Pursuant to its rulings on the constitutionality of R.C.
Columbus Southern has timely appealed, assigning four errors for our consideration:
"I. The trial court erred in concluding that R.C.
"II. The trial court erred in concluding that the refund provisions of R.C.
"III. The trial court erred in refusing to perform its duty to apply all presumptions and pertinent rules of construction to uphold R.C.
"IV. The trial court erred in concluding that the city of Columbus and the Consumers' Counsel had standing to assert due process or equal protection claims."
The state of Ohio and the Ohio Attorney General also appealed, assigning two errors for our consideration:
"I. The trial court erred in holding that the Public Utilities Commission of Ohio lacks authority, pursuant to R.C.
"II. The trial court erred in its ruling that R.C.
The City Attorney for Columbus, the Ohio Consumers' Counsel, and the named consumer have filed a cross-appeal, assigning a single additional error for our consideration:
"The trial court erred by concluding that section
In construing R.C.
"In enacting a statute, it is presumed that:
"(A) Compliance with the constitutions of the state and of the United States is intended;
"(B) The entire statute is intended to be effective;
"(C) A just and reasonable result is intended;
"(D) A result feasible of execution is intended." *360
In addition, we are bound by R.C.
"If any provisions of a section of the Revised Code or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the section or related sections which can be given effect without the invalid provision or application, and to this end the provisions are severable."
Thus, if we are able to construe a statute, or significant portions of it, in such a way as to comply with applicable requirements of constitutional law, we are bound to do so.
The portion of R.C.
The Supreme Court of the United States has provided guidance for appellate courts addressing the question of when a portion of a statute could or should be severed from the remaining portion in order to preserve some of the statute from being constitutionally infirm. Thus, in Regan v. Time, Inc. (1984),
"* * * A ruling of unconstitutionality frustrates the intent of the elected representatives of the people. Therefore, a court should refrain from invalidating more of the statute than is necessary. As this Court has observed, `whenever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act in so far as it is valid.' El Paso Northeastern R. Co. v. Gutierrez,
The Supreme Court of Ohio has provided us the express test for when severability can occur in State ex rel. King v. Rhodes
(1967),
"The test of severability is whether the remaining parts of the article, standing alone and without reference to the unconstitutional sections, can be effective and operable. * * *"
This test has been cited with approval recently in State exrel. Doersam v. Indus. Comm. (1989),
Since construing R.C.
We do find, as did the trial court, that R.C.
We reach our finding as to the due process problems based upon a significant line of federal cases in which governmental entities have authorized private parties to take personal property of customers or patrons only to have the "private" action constitute a violation of due process. The appellees have specifically cited Loretto v. Teleprompter Manhattan CATV Corp.
(1982),
Since the taking authorized by statute is a taking for purposes of a due process analysis, the remaining question is what remedy is provided for an individual whose property is taken. Unfortunately, R.C.
However, if PUCO is not limited in its discretion to rate reductions only, this infirmity is removed. Therefore, we follow our express statutory duty pursuant to R.C.
Thus, the second and third assignments of error submitted by appellant Columbus Southern and the first assignment of error submitted by the state of Ohio and the Ohio Attorney General are sustained.
Given our holding as to the assignments of error listed above, the principal remaining question presented by appellant Columbus Southern is whether or not a legislative enactment which permits a public utility for a period of time to collect a rate for which it has filed a lawful application, subject to an obligation to refund to consumers any excess funds collected, somehow constitutes an unconstitutional delegation of legislative power. We hold that R.C.
To explain, R.C.
Without R.C.
R.C.
The legislature has provided in R.C.
The legislature's treatment of the problem of determining utility rates, including the first two paragraphs of R.C.
We expressly do not address the problems presented by the third paragraph of R.C.
Also, given our treatment of the due process problems set forth above, any potential equal protection difficulties are fully addressed. Since all consumers are contemplated as receiving full refunds, no suspect or arbitrary classification occurs. The fact that those who are ongoing customers of a utility may receive their refunds through reduced utility bills, while those who discontinue service may receive a refund check, does not mean that an irrational or unreasonable classification has occurred. Hence, no equal protection problems are present in R.C.
The final error assigned by Columbus Southern addresses the question of standing as to appellees city of Columbus and Ohio Consumers' Counsel to bring this litigation. As to this issue, we note that no party contests the standing of Marvin Rothhaar, the individual consumer who is a named party, given the fact that he apparently will be discontinuing his service from Columbus Southern before receiving any potential refund. His situation, in and of itself, places the issues before the court for resolution.
The City Attorney of Columbus has standing as a result of a city ordinance which calls upon him to represent consumers living in the city of Columbus on utility matters. See Columbus City Code
"To help insure that the citizens of Columbus have an adequate supply of energy and adequate telephone service, each at a fair price, the Columbus City Attorney is hereby authorized to take appropriate action with regard to regulation of privately owned public utilities. The City Attorney may appear as a named party for the City and its agencies, and residential, commercial and industrial consumers within the City limits before the Public Utilities Commission of Ohio, Federal Energy Regulatory Commission, courts, boards, commissions and any other regulatory bodies."
The Ohio Consumers' Counsel also has standing. When the legislature created the Office of Consumers' Counsel, the legislature clearly contemplated a broad range of powers for the Consumers' Counsel in order that the interests of consumers of utility services be properly represented. Thus, in R.C.
"(1) The counsel may sue or be sued and has the powers and duties granted him under this chapter, and all necessary powers to carry out the purposes of this chapter.
"(2) Without limitation because of enumeration, the counsel: *365
"(a) Shall have all the rights and powers of any party in interest appearing before the public utilities commission regarding examination and cross-examination of witnesses, presentation of evidence, and other matters;
"(b) May take appropriate action with respect to residential consumer complaints concerning quality of service, service charges, and the operation of the public utilities commission;
"(c) May institute, intervene in, or otherwise participate in proceedings in both state and federal courts and administrative agencies on behalf of the residential consumers concerning review of decisions rendered by, or failure to act by, the public utilities commission;
"(d) May conduct long range studies concerning various topics relevant to the rates charged to residential consumers."
R.C.
Therefore, the fourth assignment of error submitted by Columbus Southern is overruled.
Thus, the first, second and third assignments of error of appellant Columbus Southern are sustained, as are the first and second assignments of error of appellants the state of Ohio and the Ohio Attorney General. The fourth assignment of error of appellant Columbus Southern is overruled. The assignment of error of the cross-appellants is also overruled.
As a result of the foregoing, the injunction issued by the trial court is ordered to be vacated. The judgment of the trial court is reversed, and this cause is remanded for further proceedings in accordance with this opinion.
Judgment reversedand cause remanded.
JOHN C. YOUNG, P.J., and McCORMAC,, J., concur. *366