Application of Northwestern Bell Tel. Co.

*105HENDERSON, Justice

(concurring in part, dissenting in part).

I concur with the dismissal of this appeal. However, I dissent with that aspect of the majority opinion which, by language, permits the Public Utilities Commission to act on interim rate requests or to grant interim rate orders.

From a standpoint of the public’s best interests, this case is highly unusual: one Assistant Attorney General, advocating on behalf of the people’s interests, and who represents the Public Utilities Commission of this state, insists that the Public Utilities Commission has an implied power under present statutes to grant interim rate requests; whereas, another Assistant Attorney General, also commissioned to protect the public, and acting on behalf of the sovereign, strenuously urges that no such power exists.

The Public Utilities Commission of this state is subject to the Administrative Procedures Act of this state. As a commission acting as an agency, it is given limited powers in a specialized field of administrative law and can only exercise those specific powers which the legislature has bestowed upon it. This is settled law in our state. Affiliated Distillers Brands Corp. v. Gillis, 81 S.D. 44, 130 N.W.2d 597 (1964).

There can be no question about this: the Public Utilities Commission has never adopted a rule upon which to base its supposed authority to act on interim rate requests (substantive) or a rule(s) with respect to its promulgation of assumed power (procedural). In short, the Public Utilities Commission has never adopted any standards on holding interim rate hearings or granting interim rate increases.

Our legislature, via SDCL 49-31-2, has declared all telephone companies to be common carriers. Therefore, the applicable law to common carriers likewise applies to telephone companies. Although the Public Utilities Commission has general powers under ch. 49-31 to regulate the method and manner of the general telephone business and to fix rates and charges for services offered, the state legislature has never enacted a state law expressly permitting the Public Utilities Commission to either (a) act on interim rate requests or (b) grant interim orders. We need not, or should not, apply Federal law, Federal decisions or sister states’ decisions to decide this case and particularly on the point that I address in my dissenting view. It can be aptly treated with South Dakota decisions. In Oahe Conservancy Subdistrict v. Janklow, 308 N.W.2d 559, 563 (S.D.1981), this Court stated:

Equally as fundamental and settled is the principle that having written broad policy into law the Legislature, in the execution of that policy, can delegate quasi-legislative power or functions to executive or administrative officers or agencies, provided it adopts understandable standards to guide its delegate in the exercise of such powers. (Emphasis mine.)

And it is obvious that the Public Utilities Commission adopted no understandable standards. Moreover, in another recent case, S.D. Migratory Bird Ass’n v. S.D. Game, Etc., 312 N.W.2d 374, 375 (S.D.1981), this very Court decided that, to establish a proper delegation of authority from the legislature to an agency, there must have been “2. A sufficient guide or standard to guide the agency.” Thus, the state legislature never having given any authority to the Public Utilities Commission to hold interim rate hearings or having set forth a statutory guide or standard to aid the agency in holding a hearing, the Public Utilities Commission’s position that it has implied power to establish interim rates crumbles.

Our legislature has addressed, in the past, specifically the powers of the Public Utilities Commission with respect to the time within which the Public Utilities Commission must conclude its decision and final action. Since July 1, 1981, any final action of the Public Utilities Commission must be concluded in its entirety within six months. The legislature has also provided a set of timetables for the Public Utilities Commission to follow after a request has been submitted for an increase in rates. This timetable for a change in rates by telephone *106companies corresponds to the schedule that the legislature has established for a rate change with public utilities in this state. Under no statutory scheme with respect to time and setting rate changes, has interim rate increases been addressed by the legislature. Under SDCL 49-10-27, the Public Utilities Commission is required to give preference to hearings for common carriers. Originally adopted in 1911, this section of the Code was reenacted in 1980 and provides the regulatory time scheme provided for by the state legislature to provide rate relief for a common carrier such as a telephone company. Therefore, our state legislature has obviously been attuned to time and rates. The timetables which have been established by the legislature should be followed. In the case of telephone companies, our legislature has seen fit to create specific time limits and given them a preference in seeing that their cause is heard (on their principal claim for relief). But it does not logically flow that it has thus created a right for an interim procedure, for an interim hearing and interim rate relief. It is not the function of the Public Utilities Commission or the Supreme Court to provide law where it does not exist. Our legislature will convene in approximately two months and can address this question. Article III, § 7 of the South Dakota Constitution provides for the convening of annual sessions of our state legislature, and one of the specific purposes for the amendment to our state constitution providing for annual sessions was for the legislature to timely address matters of great public importance.

My point is this: as one reviews the statutes it becomes obvious that the legislature has not only established certain basic time limits but has also provided a set of timetables for the Public Utilities Commission to follow after a request for an increase in rates has been filed with them. If the legislature had seen fit to give authority to the Public Utilities Commission for interim rate increases, it could have done so. But it did not.

I fear the precedent established by this case for it establishes an opportunity for the public utilities and common carriers of this state to continually bombard the Public Utilities Commission with requests for temporary, emergency, or interim rate increases. History will wash away my writing but the impact of this decision and the hurt to the people of this state is great and shall linger for years to come as this multimillion dollar judicial grant is levied in the future.* And by a series of temporary or interim or so-called emergency rate increases, higher and higher rates can be obtained without ever, head on, having been granted a rate increase on the principal and basic application for an increase. This decision perpetuates a state of rate flux, confusion and overlap. We need the legislature to forthwith address this question of great public importance for the taxpayers of this state and not have it decided by an agency of government or the judicial branch. The majority decision, in my opinion, as regards the one legal point that I dissent on, is violative of Article II of the South Dakota Constitution which provides: “The powers of the government of the state are divided into three distinct departments, the legislative, executive and judicial; and the powers and duties of each are prescribed by this Constitution.” There is nothing so dangerous to constitutional government as an undefined discretion in an administrative agency under an implication of power given by a judicial grant.

Per Bureau of Labor Statistics, U.S. Department of Labor, South Dakota ranked 50th in 1975, 1976, 1977, and 1978 in average weekly wage; South Dakota’s rank was not given therein for the years 1979, 1980, and 1981; per capita income in 1981 for South Dakota was $8,793 per U.S. Department of Commerce Bureau of Economic Analysis; per October 8, 1982, U.S. Department of Commerce, Bureau of the Census, four counties in South Dakota were ranked in the lowest fifteen counties in the United States of America in per capita income.