Southern Bell Telephone & Telegraph Co. v. Louisiana Public Service Commission

O’NIELL, Chief Justice (concurring). Although I concur in the decree overruling the motion to dismiss this appeal, my opinion is that section 11 of Act No. 45 of 1870, Ex.Sess., p. 101, is not applicable to a case where the transcript of appeal is not filed on or before the return day, or within 3 days thereafter, or within an extension of time granted by the appellate court. In this case, the appeal was made returnable within 10 days after the granting of the appeal, as required by section 5 of article 6 of the Constitution. On the third day after the appeal was granted, being the seventh day before the return day, the clerk of the district court filed in the Supreme Court a motion to extend the time allowed for filing the record in this court, for an additional period of 30 days; and, on the day of the filing of the motion, the Chief Justice granted the extension asked for. The transcript was filed' in this court before the expiration of the 30 days. The appellee’s motion to dismiss the appeal, on the ground of abandonment, is founded upon three distinct complaints. The first complaint is that the motion for the extension of the time allowed for filing the transcript was filed before the return day, and hence not on or within 3 days after the return day. The second complaint is that the motion or application for the extension of the time allowed for filing the transcript was not filed by the appellant, either in person or by an attorney for the appellant, but was filed by the clerk of the district court. The third complaint is that the motion or application for the extension was addressed, not to the Supreme Court, but to the district court. I do not consider it a matter of any importance that the application for the extension of the time in which to file the transcript was made before the return day. Attached to the application for the extension was an affidavit of the clerk of court saying that the record was so voluminous, containing approximately 3,500 pages of pleadings and documents to1 be copied, that it would be impossible for him to complete the transcript within the time allowed. There was therefore no doubt that the appellant was entitled to the extension of the time allowed for filing the transcript, and hence there was no necessity for waiting until.the return day before granting the extension. I d'o not consider it important that the application for the extension was made by the clerk of the district court, instead of being made by the appellant, either in person or by its attorney. Whether the Chief Justice would have been justified in a refusal to grant the extension on the application of *745 the clerk of court, or in requiring that the appellant should make the application, is a matter of no importance, because, after the order was granted, > it was not necessary for the appellant or the appellant’s attorney to apply for an extension. The attorneys for the appellant were justified in relying upon the order granting the extension on the application of the clerk of court. As to the third complaint of the appellee, it is true that the motion for an extension of the time allowed for filing the transcript was not addressed to the Supreme Court. In fact, the caption of the motion had reference only to the district court; but, when the motion was filed in the Supreme Court, the indorsement on the document had reference to the number and title of the case in the “Supreme Court of Louisiana.” The docket number, of course, was left in blank, to be filled in by the clerk of the Supreme Court, because it could not be known until the motion was filed what number the case would have on the docket of this court. All of which shows sufficiently that the motion was intended to be addressed to the Supreme Court. Conceding, for the sake of argument, that any or all of the complaints made by the appellee would be a sufficient reason for the Chief Justice or an Associate Justic'e of this court to refuse to grant an extension of time within which to file a transcript of appeal, it would be unjust to dismiss the appeal for any such reason after the extension has been granted, and the appellant has relied' upon the order granting the extension, until it is too late to comply with the requirements which might have been made before the extension was granted. I concur in the opinion that the granting of a suspensive appeal in a case like this is not essentially violative of the due process clause of the Fourteenth Amendment of the Constitution of the United States. Whethet the order of the Public Service Commission, which is in contest in this case, is arbitrary, unreasonable and confiscatory, is a matter to be determined on consideration of the merits of the case.