HAWKINS, Justice, specially concurring:
I join the opinion of Justice Roy Noble Lee.
In doing so, I wish also to address the threshold question of jurisdiction of the Forrest County Chancery Court, and give additional reasons for my view that there was no due process violation in these rate increases under bond.
It is important to an understanding of these two matters that we extract from the record in this case and from the records in the rate cases: a chronology of the proceedings before the Mississippi Public Service Commission, the Hinds County Chancery Court, and the 1980 Mississippi Power Company rate case before this Court; and, as well, give the status of each while this case was pending in the Forrest County Chancery Court.
On October 20, 1980, Mississippi Power, pursuant to Miss. Code Ann. § 77-3-39 (§ 10, Chapter 372, Laws 1956), gave formal, statutory notice to the Commission of proposed rate changes to go into effect November 20, 1980, 30 days after filing. The notice stated the rate change was designed to increase revenues approximately 16.5%.
On October 24, 1980, the Commission entered an order directing an investigation and a hearing on the proposed rate increase, and suspended the proposed increase for a period of 90 days from the proposed effective date of the rate increase.
As required by Miss. Code Ann. § 77-3-39 and Rule 8(b) of the Commission, the Commission prepared the following Notice to the public:
NOTICE
Notice is hereby given that Mississippi Power Company has filed a Notice on October 20, 1980, of its intention to increase rates for the rendition of electric service throughout its service area in Southeast Mississippi; effective November 20, 1980, all as more fully described in said Notice.
The Commission, by Order, has suspended the operation of proposed rates for further investigation and will make this cause returnable to the next regular meeting of the Commission, which will be held on Tuesday, December 2d 1980, at the Mississippi Public Service Commission, 19th Floor, Walter Sillers State Office Building, Jackson, Mississippi, at 10:00 A.M., to determine a hearing date as the Commission may by order fix.
WITNESS My Hand and the Official Seal of the Mississippi Public Service Commission, this the 27th day of October, 1980.
s/E.W. ROBINSON Executive Secretary
This Notice was published in the October 30, 1980, issues of the Clarion Ledger and the Daily Herald, which is a daily newspaper of general circulation on the Gulf Coast.
On November 10, 1980, Mississippi Power filed a petition with the Commission to approve a refunding bond. The petition recited the above facts, and further alleged that the power company under § 10, Chapter 372, Laws 1956 (Miss. Code Ann. § 77-3-39), was authorized to put the suspended rate increase into effect on November 20, 1980, by filing bond as required under the Act, and that the Company desired to avail itself of the rights granted by the Act.
On November 17, 1980, the Commission entered an order authorizing Mississippi Power, upon filing a bond of $20 million to put the proposed rate increase into effect, beginning November 20, 1980, all as set forth in the power company's original notice filed with the Commission.
The company filed a $20 million bond and the rates were increased beginning November 20, 1980.
On December 18, 1980, the Commission entered an order setting forth the procedure for hearing of testimony and receipt of evidence by all parties.
Numerous petitions objecting to the rate increase and to intervene were filed. Among these was a Petition for Leave to Intervene filed by numerous citizens of Harrison and Forrest counties. They were represented by the Mississippi Legal Services Coalition. They were also represented by a reputable and able law firm in Jackson. The petition recites that the Mississippi Legal Services Coalition was a joint venture of the grantees of the National Legal Services Corporation which operated in Mississippi and represented people who were impoverished and users and consumers of electricity furnished by the power company. South Mississippi Legal Services Corporation, also affiliated and a part of the Mississippi Legal Services Coalition, signed the petition along with the law firm in Jackson. The petition alleged that the rate increases would violate the statutory and constitutional rights of the petitioners, although it did not specifically allege any complaint that increasing the rates under bond would violate any constitutional right of the petitioners.
The Commission conducted extensive public hearings extending over a period of several months, from late 1980 into March, 1981, and on April 16, 1981, entered an order granting 27.7%, and denying 72.3% of the proposed increase.
The power company appealed to the Chancery Court of the First Judicial District of Hinds County, and on April 30, 1981, filed a petition with the court to stay the order of the Commission; on that date the Chancery Court stayed the order of the Commission, and suspended the enforcement of its order upon the continuation of the power company's bond in the amount of $20 million, which bond was approved.
The Chancery Court obviously gave thorough consideration of the appeal, and on March 19, 1982, entered an order approving approximately 84% of the amount of the proposed rate increase, and denying the remainder.
Both the Commission and the power company appealed the order of the Chancery Court to this court, and on March 23, 1983, we affirmed in part and reversed in part. Consistent with our opinion, on remand the Commission allowed approximately 47.35% of the requested increase and denied the remainder.
The record of this case on appeal comprised 16 volumes.
BELL 1982 CASE
On April 6, 1982, Bell pursuant to Miss. Code Ann. § 77-3-39 (§ 10, Chapter 372, Law of 1956), gave formal, statutory notice to the Commission of proposed rate changes to go into effect November 20, 1980, 30 days after filing, May 7, 1982. The notice stated the changes in rate schedules were designed to produce $98 million in additional annual revenues.
On April 8, 1982, the Commission directed an investigation and a hearing, and suspended the proposed rate increase (noticed to go into effect May 7, 1982) for a period of 90 days from and after May 7, 1982.
As required by Miss. Code Ann. § 77-3-39 and Rule 8(b) of the Commission, the Commission gave notice to the public as given in the Mississippi Power Case, supra, making this case returnable May 4.
The Commission notice was published in the Clarion Ledger April 14, 1982.
On April 21, 1982, Bell filed with the Commission a petition to approve a refunding bond, following the statute.
On April 22, 1982, the Commission authorized the filing of a bond in the amount of $50 million to put the proposed rate changes into effect beginning May 7, 1982, as provided in Bell's original notice with the Commission. Bell filed its bond May 4, 1982.
On May 3, 1982, the Commission entered an order setting proposed rate changes of Bell, as set forth in its notice of April 6 for special hearing on June 28, 1982. Notice of the public hearing was again given.
Thereafter the Commission entered an order suspending the rate changes from 90 days to six months, as authorized by statute. This was in order to give the Commission time to hear the case and enter the order prior to any proposed rate change being effective. Under the Act a utility can have its proposed rate increase suspended for a maximum period of six months. This is not material to this case, because Bell had made a bond.
In May, 1982, the Mississippi Legal Services Coalition filed a petition to intervene in the proceedings before the Commission, purporting to represent citizens "who are improverished and who are now or who in the future will be users and consumers of goods and services provided by" Bell.
Following extensive public hearings the Commission entered an order on September 8, 1982, denying any rate increase.
Bell appealed to the Chancery Court of the First Judicial District of Hinds County, and on September 13, 1982, filed in that court a petition to stay the order of the Commission denying the rate increase by filing a bond to be approved by the court, as authorized by the Act (Miss. Code Ann. § 77-3-39 and Miss. Code Ann. § 77-3-69).
The Chancery Court on September 13, 1982, stayed the order of the Commission and suspended its enforcement until the court could review the case on appeal, and also approved the $50 million bond then in effect.
On October 7, 1983, the Chancery Court reversed and remanded the Commission order, from which an appeal was perfected by the State of Mississippi, Ex Rel; Edwin Lloyd Pittman, Attorney General; Mississippi Public Service Commission; Mississippi Legal Services Coalition v. South Central Bell, Cause No. 55,347, to this court, presently pending.
Goudy never appeared or objected individually to any rate increase in Bell's case.
The record on the Bell rate increase consists of 37 bound volumes.
MISSISSIPPI POWER 1982 CASE
On April 5, 1982, Mississippi Power filed the statutory notice with the Commission that it proposed to increase its rates 30 days later, beginning May 5, 1982.
On April 6, 1982, the Commission entered an order suspending the proposed rate increases, and gave the statutory notice as given in the above cases to the public, duly published in the April 13, 1982, issues of the Clarion Ledger and the Daily Herald.
Pursuant to Commission approval the power company on April 27, 1982, made a bond of $11 million, as authorized by statute, and the increased rates were put into effect May 5, 1982.
Again, extensive hearings were conducted from June 14, 1982, until August 21, 1982, by the Commission. Goudy appeared individually in this case before the Commission, objecting to any rate increase.
On October 1, 1982, the Commission entered an order denying the rate increase.
An appeal was perfected to the Chancery Court of the First Judiciary District of Hinds County that month, and that court stayed and suspended the Commission order denying any rate increase, and permitted the power company to continue charging the increased rates under the same $11 million bond.
That case has never been appealed from the Chancery Court of Hinds County to this court. Disposition of the proceedings has been either the Hinds County Chancery Court or the Commission.
FORREST COUNTY CHANCERY COURT ACTION
The Forrest County Chancery Court suit was filed August 6, 1982. Bell filed its answer September 7 and Mississippi Power its answer September 9, 1982. Both defendants also filed motions to dismiss and for judgment on the pleading pursuant to Rule 12(b) and (c) of the Mississippi Rules of Civil Procedure.
On October 1, 1982, Goudy filed a motion for summary judgment pursuant to Rule 56.
Following an October hearing, the chancellor on November 8, 1982, entered an order denying the motions to dismiss.
Numerous affidavits and documents were filed by each side.
On January 13, 1983, the chancellor conducted a hearing on the plaintiff's motion for summary judgment, and on February 15, 1983, rendered an opinion granting plaintiff's motion for summary judgment.
On March 18, 1983, a final judgment was entered granting injunctive relief. The portion of Miss. Code Ann. § 77-3-39 authorizing an increase in rates under bond was declared to be violative of the Mississippi constitution. The defendants were enjoined from collecting all increased rates under bond, and directed to make refunds of the monies collected.
The chancellor overruled the petitions of the defendants for supersedeas on March 31, 1983. This court granted supersedeas on April 5, 1983.
If Mrs. Goudy were given all the relief she asked for in her Forrest County suit, her total savings would be considerably less than $75.00, payable over a period of one to three years.
LAW Authority of Forrest County Chancery Court
Insofar as two utilities were concerned, Miss. Code Ann. § 77-3-5 is applicable. The pertinent portions state: ". . . The public service commission shall have exclusive original jurisdiction over the intrastate business and property of public utilities." On the date the Forrest County Chancery Court action was begun, August 6, 1982, Mississippi Power's 1980 rate case had been heard and decided by the Commission, reviewed on appeal by the Hinds County Chancery Court, and a 16-volume record was on appeal before this Court.
Also, on this date the Mississippi Public Service Commission had assumed original jurisdiction of the other two rate cases, and they were in progress, being heard and considered by the Commission. The consumer objectors, representing the same class which Mrs. Goudy is supposed to represent in the Forrest County action, indeed, in one case she appeared herself, did very well before the Commission. The Commission denied the utilities any relief in both cases.
By the time the Chancery Court of Forrest County considered the merits of the motion to dismiss, both these 1982 rate cases had been heard and considered by the Commission, and were before the Chancery Court of the First Judicial District of Hinds County on appeal, the only court authorized by statute to hear the appeal, Miss. Code Ann. § 77-3-67. Under this section the Chancery Court of Hinds County upon appeal is specifically authorized to vacate the Commission's order if it violates constitutional rights.
In this particular instance, when Mrs. Goudy's case was considered by the Forrest County Chancery Court, the "injury" had been inflicted, not by the Commission, but by the Hinds County Chancery Court. For, it was under the latter's order, not the Commission's, that the increased rates of Bell and Mississippi Power were being charged. More about this later.
Some eyebrows might be raised at the intrepidity of the Legal Services Coalition, while fighting a battle in one forum, simultaneously trotting 100 miles down the road and trying another facet of the same case in another forum. This may appear an unnecessary drain upon the already taxed and burdened case loads of our court system.
The question of the Chancery Court's jurisdiction in Forrest County should have been bluntly and vigorously contested at the threshold — the front door of the Forrest County action.
In fairness to the chancellor the following should be noted: While defense counsel raised the issue of jurisdiction in their answers and motions to dismiss, in their amalgamated wisdom they did not choose to press the matter in the trial court. Their presentation at most was tepid.
The discombobulated gentlemen have seen fit to repair this defect in assiduity in their brief on appeal.
The issue is now clearly before this Court. It is also clear the Forrest County Chancery Court should never have heard this case.
The constitutional issue in the Forrest County Chancery Court suit should have been first addressed to the Commission, and it should have been addressed to the Hinds County Chancery Court, and finally to this Court considering these rate cases on appeal from the Hinds County Chancery Court. It was the function and responsibility of the Hinds County Chancery Court to hear the very constitutional questions raised in the Forrest County Chancery Court action. The same class of individuals were before the Hinds County Chancery Court.
Long ago, the United States Supreme Court stated in Interstate Commerce Commission v. Illinois Central Railroad Company, 215 U.S. 452, 470, 30 S.Ct. 155, 160, 54 L.Ed. 280, 288:
Beyond controversy, in determining whether an order of the Commission shall be suspended or set aside, we must consider (a) all relevant questions of constitutional power or right.
. . . . .
Aside from the specific statutory mandate of Miss. Code Ann. § 77-3-67, this Court also stated long ago in Dixie Lines v. Mississippi Public Service Commission, 190 Miss. 704, 713, 200 So. 579, 580:
That a court of competent jurisdiction has the power to review any order made by an administrative commission whether it . . . violates some statutory or constitutional right of an interested party, is so well settled as not to be open to any doubt.
Before foolishly permitting this skipping around and fighting the same battle (or different features of the same battle) in disparate forums, we might consider that two can tango. This time it was the consumer and her exemplary counsel. The next time it might be the utility company.
Indeed, this same thing was tried, the shoe was in fact on the other foot, and we did not permit it. In Illinois Central Railroad Company v. Mississippi Public Service Commission, 220 Miss. 439, 71 So.2d 176 (1954), the railroad desired to terminate passenger service on its lines, and after a hearing, the Commission ordered the railroad to continue its service. No appeal from the Commission order was taken. Instead, the railroad tried without success in the Chancery Courts of Harrison and Hinds counties to get a permanent injunction against the enforcement of the Commission's order. While getting temporary injunctions in both courts, they were later dissolved, the railroad was denied any permanent relief in the Chancery Courts. An appeal was taken from the decree of the Hinds County Chancery Court dissolving the temporary injunction and denying any relief. Upon appeal to this Court, one of the Assignments of Error of the railroad was that the order of the Commission amounted to taking the railroad's property without due process of law in violation of the United States and our state constitutions. In affirming we stated the following at p. 445 of the 220 Mississippi Reports, p. 177 of 71 Southern Second:
We have given the case long and thorough consideration and have concluded the Railroad did have a plain, adequate and complete remedy by appeal from the order of the Commission, to which resort was not had, and for that reason the present bill was not maintainable.
P. 448-49, 71 So.2d p. 179
In other words, the Commission is vested with extensive administrative and judicial powers in the adoption and enforcement of its administrative orders, and in the ajudication of its judicial functions, it
necessarily has power to pass upon judicial questions, and the vested legal and constitutional rights of the parties, such as are involved in the case at bar — that is to say the extent of its power to
require the operation of the two trains here involved,
whether its orders deny the carrier the due process of law under the facts of the case, and whether public convenience and necessity require appellant to make available such passenger service. And on appeal to the Circuit Court that tribunal has the power to view the findings and actions of the Commission, affirm, reverse, amend or change them, and from this action an appeal may be taken to this Court, where the actions, findings, and proceedings of both the Commission and the trial judge may be reviewed, affirmed, altered, remanded and changed, and from which action, where a Federal question is involved, appeal may be taken to the Supreme Court of the United States for such review by that Court. From this it is seen, we think, that the remedy of appellant, thus set out, is adequate and complete. [Emphasis added]
P. 451, 71 So.2d p. 180
However, every question presented in this proceeding could have been raised and passed upon had the procedure by appeal prescribed by the statute been followed . . .
It is our opinion that the statutory method of appeal, theretofore set out, afforded appellant a plain, adequate, speedy, and complete remedy for a judicial determination of all the rights of appellant and all of the questions here involved.
See also: West Brothers, Inc. v. Mississippi Public Service Commission, 186 So.2d 202 (Miss. 1966); Everitt v. Lovitt, 192 So.2d 422 (Miss. 1966).
In the case of Oklahoma Gas and Electric Co. v. Lankford, 278 Ark. 595, 648 S.W.2d 65 (1983), the Arkansas Supreme Court faced the same question on jurisdiction as in this case. The electric company, following a hearing before the Arkansas Public Service Commission had a rate increase approved in part. The consumer respondents did not seek to intervene or request a hearing before the public service commission in Arkansas, but later filed an original complaint in Circuit Court. This was a class action suit for a declaratory judgment filed by the respondents as customers and rate payers of the electric company. The electric company filed a motion to dismiss, denied by the trial court, and the electric company then sought a writ of prohibition from the Supreme Court of Arkansas against the Circuit Court exercising jurisdiction in this case.
The Arkansas Supreme Court held there was no concurrent jurisdiction in the Circuit Court to exercise jurisdiction with the public service commission when there was a complete and adequate remedy by an application to the public service commission. The court stated, p. 66:
Here, . . . respondents had a full, adequate, and complete remedy by intervention in the proceedings before the PSC. At that time the PSC could have ruled on the constitutionality of Arkansas Statutes Annotated § 73-217 and the other issues which respondents are now raising. The PSC, in exercising its exclusive jurisdiction over rate setting, can also pass upon questions of law that are germane and incidental to its legislative acts.
This case is really worse than the Arkansas case, because Mrs. Goudy's interest was represented by the same consumer class in the Bell rate increase, and she personally appeared in the power company rate increase case. Her counsel did not, either before the Commission, or on appeal to the Hinds County Chancery Court, seek to avail themselves of this constitutional protection sought in the Chancery Court of Forrest County.
The above holdings are not simply abstract principles of law, but have compelling reasons to support them.
The cost of operating the three-member Mississippi Public Service Commission for the past fiscal year was $3,099,855.00 (Chapter 157, Laws of 1982). It is also common knowledge that the overwhelming portion of the time, effort and energy of the Commission and its personnel is spent on rate cases such as these three. They are complex, exhaustive, and as noted, cost the taxpayers of this state millions annually. It is the height of waste of time and money for the Commission to be engaged in one of these cases, hear and determine it, spending hundreds of thousands of taxpayer dollars, and while the case is on appeal, have one of the parties go into a separate forum and seek to litigate a key question which should have first been presented to the Commission, and then to the Chancery Court of Hinds County exercising appellate jurisdiction.
The cost of operating the Mississippi Supreme Court for the same period was $1,189,923.00, about one-third.
Illustrative of this very observation is the monstrous anomaly we would create in affirming this case. On March 18, 1983, the Forrest County Chancery Court entered a judgment that Mississippi Power would have to repay all the increased rates it had charged since November 20, 1980. On appeal we decided on March 23, 1983, that 47.35% of the rate increase requested, or $18,611,256.00 annually would be approved.
The Chancery Court of Forrest County, ignoring the fact this case was pending before us, entered judgment that any payments made violated state constitution, and should be refunded, and no further rate increase charged.
This Court, unaware, of any such proceeding in the Forrest County Chancery Court, approved almost half the proposed rate increase.
How can these two judgments possibly be reconciled? Again, why should this Court be called upon to straighten out this kind of mess, as to conflicting judgments, when the entire matter could have been avoided by presenting the constitutional issue before the Commission, and before the Hinds County Chancery Court, and then this Court?
WAS THERE A DUE PROCESS VIOLATION?
This case was brought solely on the contention that Miss. Code Ann. § 77-3-39 violated the due process provision of Article 3, Section 14 of the Mississippi Constitution. Counsel for Mrs. Goudy were astute enough to eschew any claim that the statute violated the 14th Amendment to the U.S. Constitution, because there is a formidable array of authority to the contrary.
This likewise enabled the chancellor to escape giving any consideration to the 14th Amendment. He held there was a difference between our state constitution and the federal, and because of this different burden placed upon the utilities and the Commission under our state constitution, the statute was unconstitutional.
This reasoning is fallacious. Ordinarily, we might be able to terminate this discussion by demonstrating the fallacy of the contention that somehow there is a difference between the due process provision of the Mississippi and the United States Constitutions.
This, however, is a blind trial and does not address the really important due process question that bothers every Justice on this Court.
The central question is: does this statutory authority permitting a utility company to raise the rates it is going to charge in the future, and prior to a hearing determining what constitutes a fair and reasonable rate, violate due process?
Due process has been addressed by courts in so many different ways and defined in so many situations, it would take a lifetime just to read the cases. There is nothing mysterious about the term, however. To most of us its central meaning simply is even handed fairness in legal proceedings.
Going further, at first blush it would appear that there is very good authority from the United States Supreme Court itself that the above question would have to be answered in the affirmative.
In Fuentes v. Shevin, 407 U.S. 67, 32 L.Ed.2d 556, 92 S.Ct. 1983, cited in the dissenting opinion, replevin statutes in Florida and Pennsylvania were declared to be violative of the Fourteenth Amendment because they permitted plaintiffs in replevin actions to have personal property seized and delivered to them upon making affidavit and a bond, but prior to any adversary hearing.
And, in Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62, the Supreme Court nullified an adoption proceeding in a Texas state court under a statute which, under certain circumstances, authorized an adoption hearing and judgment without the natural father being personally served.
Not only every lawyer, but most citizens are aware that no court can, under our Constitutions, take away property or valuable rights from any person without giving him fair notice and an opportunity to be heard.
In Fuentes the Court went so far as to declare a temporary deprivation of property proscribed in the 14th Amendment.
Under our state law consumers are entitled to fair and reasonable rates from utility companies. It may well be asked then: is it not unfair and violative of due process notions to permit a utility company to announce a raise in future rates without first having it determined by a commission or court, or both, that this proposed new rate is fair and reasonable?
This question goes to the very heart of the matter, and must be answered.
A utility company states that beginning one month from this date it is going to increase its monthly charge. Should I be required to pay this increase when there is a possibility that it will later be determined in legal proceedings that part or all of the increase is unreasonable? Or, should the utility company be prevented from increasing its rate in any amount until it has been determined in a commission hearing and on appeal through the courts that its proposed increase is reasonable and fair?
This is the balancing of rights with which we are faced.
The consumer has the unquestioned right under our law that the rates he is charged by a monopoly will be fair and reasonable.
On the other hand, the utility has the unquestioned right under our law to receive a fair and reasonable return for the services it renders.
Both the consumer and the utility unquestionably have valuable, imbedded rights under our law.
I would also suggest that there is another vital interest to the consumer: uninterrupted and efficient service. Without this, everybody is unquestionably seriously harmed. While it is entirely possible that even though receiving reasonable rates, a utility company, because of waste, mismanagement, corruption, or unforeseen economic conditions may wind up rendering poor or spasmodic service, there can be but little doubt that even if it is operated in the best possible manner, but does not receive a fair and reasonable return, its service to the public will be impaired. The utility company has no constitutional obligation to render quality service and it is a monopoly.
We thus have a scale. On one side is the fair and reasonable rate to which the consumer is entitled, and on the other side the fair and reasonable return to which the utility is entitled.
We attempt through our public service commission to keep this scale evenly balanced. Yet, it is an economic impossibility that this scale at all times be evenly balanced. It is impractical, illusory to suppose that, given the economic conditions, the variables in the costs of running a multimillion dollar business enterprise such as a utility, there will not be periods of time when the scale is tilted one way or another.
The utility company is a profit making enterprise, run by businessmen, and no doubt will seek to charge the rate it thinks the traffic will bear. And, it must, at a minimum, receive enough to enable it to render efficient and continuous service.
Finally, we can agree that permitting a utility company to put a proposed rate increase into effect under bond can possibly result in a financial windfall to the utility. This comes about by the company charging the increased rate over a period of time, sometimes as much as two years, with the court finally determining at least a part, perhaps even all, of the proposed increase was unreasonable. The company is then obligated to refund the increase plus the legal rate of interest to the consumer. On the other hand, it has saved itself from having to borrow money at a much higher rate of interest, or perhaps invested reserves at a higher rate of interest, which otherwise would have been spent in operating costs.
Let us look at the other side of the coin. What happens if the law tells the utility it can make no rate increase until the proposal has run its course through the Commission and appellate courts? And, it is finally determined that a part or perhaps all of the proposed increase was indeed fair and reasonable? For the year or two this matter is pending in litigation, the utility company has been deprived of its right to a fair return on its investment, with possibly no hope of receiving those rates it would have charged in the interim.
Would this pass a constitutional muster?
Even if it were constitutional, would this necessarily be in the public interest? The company is going to have to get its money somewhere at greater expense and some time or another it is going to get it back through increased rates. The state has cost the company more in the interim, with the consumer eventually having to pay more than he otherwise would be paying, when the matter is finally settled.
Aside from this, if our law is to prohibit an increase in rates until the legal proceedings are terminated, we will force utility companies to petition the Commission two or three years, or more, before a proposed rate increase, and we are going to have litigation based on speculation years into the future. And, one rate case will not be settled until there is another. In fact, we may have a single utility company with a series of proposed rate increases before the Commission and our courts at the same time. This could present an unsuperable burden upon the Commission, our courts, and the taxpayers.
It may very well be more practical and fair in the final analysis to permit utilities to increase their rates on a relatively short notice, and our Commission can examine economic conditions as they presently exist, or will exist in the near future, and not as experts think and argue they will exist in some distant future.
The Legislature in its wisdom may modify the law. The Legislature might decide to do more than simply require a refund plus legal interest on an increase later determined to be unreasonable. It could exact a stiffer penalty if a utility put an increase into effect more than ultimately found to be reasonable. It might even make it a crime on the part of the utility's officers and directors if the rate were found to amount to extortion. But, these matters should be left solely with the Legislative branch of our government, which is capable of balancing the equities, the fairness and the practical problem faced. Courts are not equipped to do so. A decision on our part that no statute can be passed which permits a utility to raise rates prior to final hearing would put a straight-jacket on the Legislature we might all rue.
See §§ 7091-7093 Miss. Code 1930.
Indeed the statute has been changed. It does not take more than a cursory examination of Miss. Code Ann. § 77-3-39 in effect when this case was tried, and the new statute § 77-3-39, however, to observe that under both the old and the new statutes a utility can increase rates under bond, and before final hearing. If we declared the old § 77-3-39 violates our constitution, the same issue could be envisioned under our present act as well.
Thus far I have only attempted to give what to me are practical observations about this troublesome problem.
Fortunately, the due process concept as expressed by our Courts in this state and elsewhere do not require a knee jerk reaction to Fuentes. We are authorized to recognize there can be differences in construing what does and does not violate due process, according to the circumstances.
Justice Roy Noble Lee has covered the difference in his opinion so ably, I will not repeat what he has stated.
We must first bear in mind that Miss. Code Ann. § 77-3-39 is a law affected with the public interest.
The U.S. Supreme Court, speaking of the due process protection in a Federal proceeding under the Fifth Amendment, stated the following in Cafeteria Workers v. McElroy, 367 U.S. 886, p. 895, 81 S.Ct. 1743, p. 1748, 6 L.Ed.2d 1230, p. 1236:
The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation. . . . Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. It is compounded of history, reason, the past course of decisions . . .
This Court stated in Mississippi Tax Commission v. Flora Drug Co., 167 Miss. 1, 148 So. 373 (1933), p. 376:
In passing upon an act of the Legislature to promote the public interest, we must allow a wide latitude, remembering that members of the Legislature may be more familiar with the situations and conditions. The Legislature has the power to make investigations and give painstaking consideration to the results thereof.
In Albritton v. City of Winona, 181 Miss. 75, 178 So. 799 (1938), p. 805, we stated:
The due process clauses of
our constitutions must not be construed so as to put the state and federal governments into a straight-jacket and prevent them from adapting life to the continuous change in social and economic conditions.
The history of the regulation of public utilities reveals the 1956 Act, from which Miss. Code Ann. § 77-3-39 and related sections are codified, is a restriction, not an expansion, of long settled rights of public utilities.
The right of the consumer to reasonable rates from a utility exists under the common law, and aside from any statute. At the same time the public utility had the right to fix the charges it deemed reasonable. It was incumbent on the consumer to take the matter to court, and if the charge were found to be unreasonable, reparation would be awarded. See: Arizona Grocery Company v. Atchison, Topeka Santa Fe Ry., 284 U.S. 370, 52 S.Ct. 183, 76 L.Ed. 369 (1931).
And, in that case, speaking of the authority of the Interstate Commerce Commission, the Court states, 284 U.S. p. 384, 52 S.Ct. p. 184: "That Act did not take from the carriers their power to initiate rates; that is the power in the first instance to fix rates, or to increase or to reduce them."
In United Gas Pipe Line Company v. Memphis Light, Gas Water Division, 358 U.S. 103, 79 S.Ct. 194, 3 L.Ed.2d 153 (1958), the U.S. Supreme Court held the initial rate-making and rate-changing power of natural gas companies remained undefined and unaffected by the Natural Gas Act and, like the seller of an unregulated commodity, having the right in the first instance to change its rates as it will. The Act came into play as to rate changes only in (1) imposing upon the seller the procedural requirement of filing timely notice of any proposed change, (2) giving the Federal Power Commission authority to review such change, and (3) authorizing the commission to suspend the new rates for a five-month period, and thereafter to require the posting of a refund bond pending a determination of the lawfulness of the rates as changed.
Section 10, Chapter 372, Laws 1956 (§§ 77-3-37, 77-3-39) imposes the same kind of restriction upon a state regulated utility.
The Act first requires that the utility, in order to make a rate change, must give the Commission at least 30 days prior notice of its proposed rate change.
The Commission is then required to give the public notice of the proposed rate change.
After giving the Commission notice, the utility is authorized to make the rate change unless there is a complaint filed, or the Commission on its own initiative directs a hearing concerning the lawfulness of the rate.
Pending such hearing the Commission may "suspend the operation" of the proposed increase, that is, stop the increase going into effect, but not for a period longer than 90 days, with the further authority of the Commission to extend this 90-day period not to exceed six months from and after the date of the original notice from the utility.
If the Commission by order suspends the operation of the proposed increase, the utility has the right to file a bond in a reasonable amount, approved by the Commission, which will authorize the utility to go ahead and put its rate increase into effect on the date it originally proposed (which must be at least 30 days after the first notice to the Commission), pending final outcome of the hearing.
If the final order following the hearings is unfavorable to the utility, it has the right of appeal to the Chancery Court of the First Judicial District of Hinds County, under Section 26 of the Act (§ 77-3-67).
Upon appeal, and pending its review, the Chancery Court, under Section 27 of the Act (§ 77-3-69) has the authority to suspend the final order of the Commission and permit the utility to continue charging the increased rate upon filing with the Court a reasonable bond, approved by the Court.
After review by the Chancery Court, appeal may then be taken to this Court. No further bond is required to keep the increased rate in effect pending appeal in this Court, unless application therefor is made. Section 28 of the Act, Miss. Code Ann. § 77-3-71.
The above statutory procedure was scrupulously followed in each of the three rate cases.
Can this Court say that this procedure beyond all reasonable doubt was beyond the power of the Legislature to enact? Our Legislature, following a procedure almost identical to the Federal government, and other states throughout this nation, undoubtedly determined the procedure enacted for Mississippi was fair and reasonable. Sellers v. Iowa Power Light Company, 372 F. Supp. 1169 (1974) is quite persuasive on the due process question raised in this case. That case addressed the identical question we have, and the Court found, after weighing the interests of the consumer, the utility, and the public, there was no deprivation of any due process right.
As noted, supra, the Legislature in 1983 enacted a new series of laws regulating public utilities in this state; Ch. 467, Laws 1983, with substantial changes in Chapter 372, Laws 1956. The present Act gives the utility the right to increase its rate upon 30 days' notice, as the former Act, unless the Commission directs a hearing which it is required to do in major rate changes. Pending the hearing the Commission may "suspend the operation" of the rate increase for a period not to exceed 120 days. If the Commission has not rendered its decision in 120 days, the utility may put the proposed rate increase into effect by making bond. Sections 15-16, Chapter 467, Laws 1983, Miss. Code Ann. §§ 77-3-37, 77-3-39 (1983 Supp.).
Also, appeal may be taken to the Chancery Court of the First Judicial District of Hinds County, where the Chancery Court has broader discretion than under the former Act, including authority to permit the utility to keep the increased rate in effect by making bond. Section 26, Laws 467, Miss. Code Ann. § 77-3-69 (1983 Supp.).
Although not necessarily persuasive, under the view of the dissent, the present Act would have difficulty passing constitutional muster. True, the Act has been changed, but the same constitutional issue remains under the 1983 Act.
In conclusion, conceding for this discussion that having a right to a reasonable rate is a valuable right, it is certainly not a constitutional right, but a right which the Legislature may give or take away at any legislative session. Having this power, should we not concede to this body the power to decide the manner in which the right shall be accorded?
Answering the initial question: I have a right (given me now by statute) to ultimate determination that the rate a utility charges is reasonable. But, when I walk in the electric company office at the first of the month to pay my bill, I have no right to have it legally predetermined that the amount I am required to pay for the month is fair and reasonable.
Significantly, the "injury" which was being inflicted upon Mrs. Goudy when her case was heard in the Chancery Court of Forrest County came, not from an order of the Commission authorizing the rate increase, but from an order of the Chancery Court of Hinds County, which authorized the rate increase under bond under Miss. Code Ann. § 77-3-69.
FEDERAL AND STATE CONSTITUTIONAL RIGHTS THE SAME
The chancellor held that Article 3, Section 14 of the Mississippi Constitution gives different due process rights to individuals than Amendments 5 and 14 of the United States Constitution. Thus, the chancellor in his opinion stated our Mississippi Constitution is "much more restrictive than the due process clauses contained in the United States Constitution". [R. 1052] And, the dissent tells us our State Constitution is ". . . broader, more encompassing protection of individual rights". In any event, it is "different".
As noted by Justice Roy Noble Lee, this pronouncement ignores two landmark cases rendered by this Court.
Walters v. Blackledge, 220 Miss. 485, 71 So.2d 433 (1954), p. 444 states: "The due process required by the Federal Constitution is the same `due process of law' which is required by Section 14 of the Constitution of the State of Mississippi."
National Collegiate Athletic Ass'n v. Gillard, 352 So.2d 1072 (1977), p. 1081 states:
The basic decision of the case then is the simple statement that Gillard's "right" to engage in intercollegiate football is not a "property" right that falls within the due process clause of either Section 14 of the Mississippi Constitution or the Fourteenth Amendment of the United States Constitution,
both of which are identical. [Emphasis added]
Fuentes v. Shevin, supra, involved state laws authorizing seizure and delivery of property to private litigants upon making bond.
Armstrong v. Manzo, supra, involved Texas statute permitting final judgment in adoption proceedings in certain instances without service upon a natural father.
In this case we are considering the due process violation of the utility companies who, acting under a state statute, raise their rates under bond prior to final determination of the authorized rate.
At issue is whether or not the consumers are entitled to a notice and a hearing prior to the companies raising their rates.
It is thus clear that the due process concept applied in Fuentes and Armstrong is the same as this case.
While it is true the 14th Amendment proscription is against the states, the U.S. Supreme Court has interpreted this to mean that any state law, or any state legal proceeding which operates to deprive a person of due process of law violates the 14th Amendment to the U.S. Constitution. This is the precise state constitutional objection which the chancellor found to the Mississippi Statute, § 77-3-39.
As we held in Walters and Gillard, the rights guaranteed the parties in these rate cases under the Fourteenth Amendment to the United States Constitution and Article 3, Section 14 of the Mississippi Constitution are precisely the same. There cannot be a violation of the one without the other.
The above opinion originated as a dissent. Portions of the original have been removed, and it has been amended to a concurring opinion. Neither did the author have the benefit of Justice Robertson's erudite dissent.
PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and PRATHER, J., join this opinion.
DAN M. LEE, Justice, dissenting:
This appeal concerns the constitutionality of section 77-3-39 Mississippi Code Annotated (1972). That section allows a public utility to place rate increases into effect under bond without a hearing, notice, or a determination of the fairness and reasonableness of the increase. This cause was originally heard in the Chancery Court of Forrest County where the chancellor held that § 77-3-39 violates the due process requirement of Article III, § 14 of the Mississippi Constitution of 1890. After much consideration, I must dissent from the views expressed by the majority.
As the chancellor correctly found, there were no material issues of fact in dispute. I will waste little time in detailing the factual circumstances which led to this suit. It is sufficient to state that in October, 1980, Mississippi Power Company requested the Mississippi Public Service Commission to approve a $39,000,000 rate increase. Without approval from the Commission, notice to its customers or an opportunity for a hearing, Mississippi Power Company put that rate increase into effect under bond pursuant to § 77-3-39 in November, 1980. In April, 1982, Mississippi Power Company requested the Public Service Commission approve a 21.9 million dollar rate increase which was also put into effect under bond pursuant to § 77-3-39 without notice to its customers or an opportunity for a hearing. In April, 1982, South Central Bell requested that the Public Service Commission approve a $98,000,000 rate increase which was put into effect under bond pursuant to § 77-3-39 without notice to its customers or an opportunity for a hearing. Alvirena Goudy and the class of plaintiffs she represents are customers of these utilities who have been forced to pay the increased cost of their services resulting from the aforementioned rate increases.
Before deciding whether the placing of utility rate increases under bond without notice or opportunity for hearing is a violation of our State and Federal due process requirements, we must initially determine that Alvirena Goudy and the class of plaintiffs she represents have a legitimate property interest entitled to the protection of the due process clause. This inquiry is easily answered in the affirmative by reference to § 77-3-33 of the Mississippi Code Annotated (1972). The very first line of that statute reads:
No rate made, deposit or service charge demanded or received by any public utility shall exceed that which is just and reasonable.
Therefore, by an express mandate of the state legislature, residents of this State have been granted an entitlement to utility rates which are just and reasonable. Furthermore, subsection (2) of § 77-3-33 establishes a property interest in continued and uninterrupted service from the public utility where the customer has abided by the reasonable rules established by that utility. The pertinent portion of that subsection reads:
Such utility
shall furnish adequate, efficient and reasonable service, and may establish reasonable rules governing the conduct of its business and the conditions under which it shall be required to render service. (Emphasis added).
In Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978), an analogous requirement of service was held by the United States Supreme Court to constitute the recognition of a protected interest. In that case the Tennessee courts had held that public utilities in Tennessee were obligated to provide service without discrimination or denial except for good and sufficient cause. The United States Supreme Court held that the recognition of the right to continued service constituted sufficient ground upon which to assert a "legitimate claim of entitlement" within the protection of the due process clause.
Evaluation of § 77-3-33 and the Craft opinion leave no room for doubt that the residents of this state have a legitimate property right and interest in just and reasonable rates and continued utility service where they have complied with reasonable rules established by the utility. Because this statute gives consumers a legitimate claim of entitlement to a just and reasonable rate, they may not be deprived of that entitlement with state participation without due process of law. See e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); North Georgia Finishing, Inc. v. DiChem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
Due process guarantees are afforded to residents of this state by the Fourteenth Amendment to the United States Constitution and Art. III, § 14 of Mississippi Constitution of 1890. These provisions read as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Emphasis Added).
U.S. Const. Amend. XIV.
Section 14. No person shall be deprived of life, liberty, or property except by due process of law.
Miss. Const. 1890 Art. III § 14.
Numerous decisions of this Court and the United States Supreme Court define the minimal requirement of procedural due process as reasonable advance notice and a meaningful opportunity to be heard. See Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).
In Mathews v. Eldridge, supra, this country's highest court wrote:
This Court
consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. Wolff v. McDonnell, 418 U.S. 539, 557-558,
41 L.Ed.2d 935,
94 S.Ct. 2963 [2975], 71 Ohio Ops 2d 336 (1974). See, e.g.,
Phillips v. Commissioner, 283 U.S. 589, 596-597,
75 L.Ed. 1289,
51 S.Ct. 608 [611] (1931). See also
Dent v. West Virginia, 129 U.S. 114, 124-125,
32 L.Ed. 623,
9 S.Ct. 231 [234] (1889). The "right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society."
Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168,
95 L.Ed. 817,
71 S.Ct. 624 [647] (1951) (Frankfurter, J., concurring). The fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner."
Armstrong v. Manzo, 380 U.S. 545, 552,
14 L.Ed.2d 62,
85 S.Ct. 1187 [1191] (1965). See
Grannis v. Ordean, 234 U.S. 385, 394,
58 L.Ed. 1363,
34 S.Ct. 779 [783] (1914). (Emphasis Added).
424 U.S. at 333, 96 S.Ct. at 902, 47 L.Ed.2d at 32.
More recently, in Memphis Light, Gas and Water Division v. Craft, supra, the Supreme Court held:
"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."
Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314,
94 L.Ed. 865,
70 S.Ct. 652 [657] (1950).
436 U.S. at 13, 98 S.Ct. at 1562, 56 L.Ed.2d at 41.
Decisions of this Court interpreting our State Constitution have held that the same minimal requirements of reasonable advance notice and opportunity to be heard are guaranteed by Art. III, § 14 of the Mississippi Constitution of 1890. In Bouslog v. City of Gulfport, 112 Miss. 184, 72 So. 896 (1916) this Court held that an act which authorized boards of supervisors, mayors and boards of aldermen to erect seawalls, breakwaters and bulkheads for protection of public roads and streets along beaches or shores of any body of water was unconstitutional because it allowed the laying of special assessments on abutting property without any provision for notice to the owners of the property or an opportunity for those owners to be heard and object to the assessments. We there held that without express provisions for notice and opportunity to be heard before the tax was assessed, the act was unconstitutional on its face.
In In Re Savannah Consolidated School District, 208 Miss. 460, 44 So.2d 545 (1950), this Court held that the issuance of school improvement bonds without notice or opportunity to be heard constituted a violation of Article III, § 14 of the Mississippi Constitution of 1890.
Having established that residents of this state have a property interest in fair and reasonable utility rates and that that interest may not be usurped without reasonable advance notice and an opportunity to be heard, I turn now to § 77-3-39 itself. That section reads:
Whenever there is filed with the commission by any public utility any schedule or notice stating a rate or rates
differing from the rate or rates theretofore in effect, the commission may, either upon complaint or upon its own initiative, upon reasonable notice, enter upon a hearing concerning the lawfulness of such rate or rates.
Pending such hearing and the decision thereon the commission, upon delivering to the utility affected thereby a statement in writing of its reasons therefor, may, at any time before they become effective, suspend the operation of such rate or rates, but not for a longer period than ninety days beyond the time when such rate or rates would otherwise go into effect. However, if the commission shall find that a longer time will be required for its determinations, the commission may extend the period for not to exceed six months from the date of filing such schedule or notice.
Notwithstanding any such order of suspension, the
public utility may put
such suspended rate or rates into effect on the date when it or they would have become effective if not so suspended, by filing with
the commission a bond in a reasonable amount approved by the commission, with sureties approved by the commission, conditioned upon the refund, in a manner and to the parties to be prescribed by order of the commission, of the amount of the excess, with lawful interest thereon, if the rate or rates so put into effect are finally determined to be excessive. There may be substituted for such bond other arrangements satisfactory to the commission for the protection of the parties interested. During any such period when suspended rates are in effect under bond or other arrangement the commission may, in its discretion, require that the public utility involved shall keep an accurate account of payments made under the rate or rates which the public utility has put into operation in excess of the rates in effect immediately prior thereto.
If, after such hearing, the commission shall find any such rate or rates to be unjust, unreasonable or unreasonably discriminatory, or in anywise in violation of the law, the same shall be set aside and the commission shall determine and fix by order such rate or rates as will yield a fair rate of return to the public utility for furnishing service to the public and shall make and file its conclusions and findings of fact supporting such order. A copy of such order shall be served upon the utility in the manner provided in this article, and the rates fixed by the commission shall be the legal rates until changed as prescribed by this article. Rates in effect under bond, or other arrangements satisfactory to the commission, may be continued in effect by the utility under the terms and conditions of said bond or other arrangement pending final determination of any appeal. (Emphasis Added).
Because the Public Service Commission is charged with the duty of setting fair and reasonable utility rates, any increase in those rates is presumptively in excess of a fair and reasonable rate until such increase is approved by the Public Service Commission or the courts of this State. § 77-3-39 allows utilities to increase their rates to any level they may arbitrarily desire simply by posting a bond. There is no notice nor opportunity to be heard required by the statute. In effect, the statute allows utilities to demand payment for rates charged in excess of those determined to be fair and reasonable. Indeed, the utility has the right to discontinue service for nonpayment of such debts, all without notice or the opportunity for objection. This is exactly what happened to Alvirena Goudy and the class of plaintiffs she represents. Indeed, not even the Attorney General of the State of Mississippi, the judicially recognized consumer surrogate, was given notice. See State Ex Rel Allain v. Mississippi Public Service Commission, 418 So.2d 779 (Miss. 1982).
The problem and the deficiency in the statute were clearly explained in the chancellor's opinion as follows:
In the process established there now enters the fatal "Notwithstanding" clause in our statute. Under it, the utility may place the suspended rate into effect and this is done
by the utility without notice to anyone and without any hearing whatsoever! Certainly there is notice and a hearing if there is no rate placed in effect under bond, BUT,
nowhere in § 77-3-39 is there provided a notice and a hearing before the taking of the property under bond! This is the crux of the case. Under our law, even if a subsequent notice is given and a subsequent hearing had, on the rate under bond, such a subsequent notice and hearing are not provided for in the statute, and therefore would avail the utilities nothing. Any non-legislative attempt to salvage the statute by providing any such non-statutory notice and/or hearing at the time of the placing of the rate under bond would be a nullity. Simply because the consumer may later get a refund under the bond if the bonded rate is found to be unreasonable at some later time does not mitigate the damage the consumer has
already suffered by not being afforded notice and hearing at the
time the rate under bond was instituted. Being deprived of the sacred constitutional rights of notice and hearing for a short time only, does not serve to mitigate the unconstitutionality of the deprivation.
(Emphasis partly supplied)
As noted by the chancellor, even deprivations which may ultimately prove to be only temporary if the rate increase is eventually determined unjust and unreasonable violate due process. A temporary and non final deprivation of property is nonetheless an illegal deprivation. Fuentes v. Shevin, supra; Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). The guarantee of a refund if the rate increase is deemed unjust and unreasonable is certainly no comfort to a low income family who cannot spend the possibility of a refund under bond at the grocery store.
Certainly I recognize that denials of due process by a private party, without some form of state action, involve no constitutionally offensive claim. Lugar v. Edmondson Oil Co., supra, 457 U.S. at 939, 102 S.Ct. at 2755, 73 L.Ed.2d at 496; Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); McComb Equipment Co. v. Cooper, 370 So.2d 1367 (Miss. 1979). In the instant case, state action is inherent in the role of the Public Service Commission as it approves the utility's bond.
The appellants rely on Holt v. Yonce, 370 F. Supp. 374 (D.S.C. 1973) summarily affirmed, 415 U.S. 969, 94 S.Ct. 1553, 39 L.Ed.2d 867 (1974) (Emphasis added). This 1974 case was "summarily affirmed" without any written opinion whatsoever. The question presented dealt with injunctive relief under 42 U.S. Code § 1983 against a South Carolina rate under bond statute. Importantly Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) and Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978), were decided after Holt. Because Eldridge and Craft are more recent and were decided by written opinion they provide us with some guidance whereas Holt does not. Indeed, the United States Supreme Court has written on the lack of precedential value of a case summarily affirmed without opinion:
"When we summarily affirm, without opinion, the judgment of a three-judge District Court,
we affirm the judgment but not necessarily the reasoning by which it was reached. An unexplicated summary affirmance
settles the issues for the parties, and is not to be read as a renunciation by this Court of doctrines previously announced in our opinions after full argument. Indeed, upon fuller consideration of an issue under plenary review, the Court has
not hesitated to discard a rule which a line of summary affirmances may appear to have established." (citing numerous cases) (Emphasis Supplied)
Fusari v. Steinberg, 419 U.S. 379, 391, 95 S.Ct. 533, 541, 42 L.Ed.2d 521, 530-531 (1975).
Consequently, Holt has no value as binding precedent. Certainly it cannot be read to limit the doctrines clearly approved in cases such as Eldridge, supra, and Craft, supra which were decided after it.
Furthermore, the decision in Holt is inapplicable to the case at bar for another reason. Holt does not involve the concept of entitlement as it relates to just and reasonable utility rates. In Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), the United States Supreme Court clearly held that a claim of entitlement "must be decided by reference to state law." Therefore, the Holt decision which grew out of South Carolina is certainly not precedent in determining what rights and benefits the State of Mississippi has secured unto its residents.
If due process and fundamental fairness are to have any meaning that meaning cries out in this case. To allow a utility to extract sums in excess of those determined to be just and reasonable simply amounts to a forced loan to that utility from the pockets of the rate-paying public. Whatever procedure exists to insure that the unjust and unreasonable portion of that "loan" is returned to consumers comes too late. We have put the cart before the horse. The effect of permitting rate increases under bond without notice and the opportunity to be heard is that the consuming public has been effectively enslaved and forced to do the bidding of a powerful private interest. The refusal of the consumer to cooperate with this unconscionable system subjects him to a termination of essential services. Today's decision does an injustice to every citizen of this state by opening our collective pocket books to the whim of private interests whose foremost goal is personal profit. For that reason and those expressed above, I dissent. I would affirm the decision of the chancellor, provided however, I would not order refunds to the utility consumers in an amount in excess of:
(a) the increased rates put into effect under bond, plus
(b) interest at eight percent on the increased rates to the date of refund or to the date of PSC determination that the rates are just and reasonable (to the extent that the PSC may have been ultimately affirmed), minus
(c) all sums heretofore refunded and, minus further
(d) any and all parts of the increased rates ultimately determined to be just and reasonable.
BOWLING, J., joins in this dissent.