Opinion
No. 43485.
April 19, 1965.
1. Public Service Commission — jurisdiction — none, over United States Government.
Public Service Commission could not force United States Government to permit electric utility under contract to furnish power to air base or any other public utility to serve the area. Sec. 7716-05(b), Code 1942.
2. Public Service Commission — certificates awarded on area basis in the usual case.
Public Service Commission should issue certificates to electric utilities on area basis in the usual case. Sec. 7716-05(b), Code 1942.
3. Public Service Commission — facility basis authorized under peculiar and special circumstances.
Under peculiar and special circumstances, Public Service Commission may authorize continuance of electric utility's operation on facility basis as they were being carried on on the effective date of Public Utility Act. Sec. 7716-01 et seq., Code 1942.
4. Public Service Commission — certificates on area basis declined — facility basis authorized — jurisdiction reserved.
Public Service Commission had right, at time of hearing on petition by electric utility and competitor for grandfather certificates for area consisting of Air Force Base, to decline to issue certificates on area basis, to authorize utility to continue operations as conducted at time of effective date of Public Utility Act, and to reserve jurisdiction for issuance of a certificate when, and if, circumstances changed. Secs. 7716-01 et seq., 7716-05(b), Code 1942.
Headnotes as approved by Jones, J.
APPEAL from the Chancery Court of Hinds County, J.C. STENNETT, Chancellor.
Wise, Smith Carter, James K. Child, Jr., Jackson, for appellant.
I. The Chancery Court erred in failing to vacate the order of the Public Service Commission and enter a final decree awarding appellant a certificate of public convenience and necessity, under Section 5(b) of the Act, for the area encompassed by the Greenville Air Force Base, Washington County, Mississippi, as of March 29, 1956.
A. The Public Service Commission's finding that no worthwhile purpose would be served by the grant of a certificate of public convenience and necessity violated Section 5(b) of the Act, as same provides for the granting of "Grandfather" certificates as a matter of right, for operations being conducted on the date of the Act. Capital Electric Power Assn. v. Mississippi Power Light Co., 240 Miss. 139, 125 So.2d 739; Germenko v. Maryland Public Service Comm., 226 Md. 295, 173 A.2d 362; Lambert Transfer Storage Co. (Ky.), 315 S.W.2d 629, 25 P.U.R. 3d 526; North Carolina ex rel Utilities Comm. v. Fox, 239 N.C. 253, 79 S.E.2d 391; Puhl v. Public Utilities Comm., 139 Pa. Super. 152, 11 A.2d 508; Re Ex Parte Willis Dawson, P.U.R. 1928B, 181; Re John W. Dahlen, 72 P.U.R. (N.S.) 266; Re Maurice Friedman, 81 P.U.R. (N.S.) 266; Re Purple Swan Safety Coachline, P.U.R. 1928A, 193; Re Ranier National Park Co., P.U.R. 1921E, 828; Re Snyder, P.U.R. 1923E, 519; Re Waterloo, C.F. N.R. Co., P.U.R. 1923E, 424; Re Yelloway, P.U.R. 1928A, 217; Re Youngblood Trucklines, 18 P.U.R. 3d 473; Stark Electric R. Co. v. Salisbury Transportation Co., 16 Ann. Rep. Ohio P.U.C. 205; State ex rel Utility Comm. v. Fleming, 235 N.C. 660, 71 S.E.2d 41; Sec. 7716-05(b), Code 1942.
B. The order of the Commission dated March 6, 1962 was not supported by substantial evidence and was contrary to the overwhelming weight of the testimony, and the Commission erred in not dismissing the application of the Association for the area of the Greenville Air Force Base.
II. Service by appellant to Greenville Air Force Base as of March 29, 1956, was an operation being conducted by appellant on the effective date of the Act, thereby entitling appellant to a grandfather certificate for said area. Capital Electric Power Assn. v. Mississippi Power Light Co., supra; Mississippi Power Co. v. East Mississippi Electric Power Assn., 244 Miss. 40, 140 So.2d 286.
III. The Chancery Court erred in remanding this cause to the Public Service Commission on a finding of a change in circumstances, occurring subsequent to the hearing before the Commission, as same is not supported by any substantial evidence in the record of this cause. Capital Electric Power Assn. v. Mississippi Power Light Co., supra; Capital Electric Power Assn. v. Mississippi Power Light Co., 249 Miss. 514, 150 So.2d 334; Delta Electric Power Assn. v. Mississippi Power Light Co., 249 Miss. 482, 149 So.2d 504; Mississippi Power Co. v. East Mississippi Electric Power Assn., supra; Sec. 7716-26(c)(d), Code 1942. Lott Sanders, Greenwood, for appellee.
I. Cited and discussed the following authorities: Capital Electric Power Assn. v. Mississippi Power Light Co., 240 Miss. 139, 125 So.2d 739; Capital Electric Power Assn. v. Mississippi Power Light Co., 249 Miss. 514, 150 So.2d 334; Delta Electric Power Assn. v. Mississippi Power Light Co., 249 Miss. 482, 149 So.2d 504; Mississippi Power Co. v. East Mississippi Electric Power Assn., 244 Miss. 40, 140 So.2d 286; Sec. 7716-01 et seq., Code 1942.
This matter was heard before the Public Service Commission on a petition of Mississippi Power Light Company and a petition of Delta Electric Power Association, each of which requested that they be granted a grandfather certificate under Mississippi Code Annotated section 7716-05(b) (1956) for the area known as the Greenville Air Force Base in Washington County, Mississippi. Mississippi Power Light Company claimed the right to a grandfather certificate to all of said area within the fence and Delta Electric Power Association claimed the right to a portion thereof as well as to a portion of the land of the area outside the fence. The Commission entered an order permitting each of the parties to continue the operations that they had within the fenced area on the effective date of the Public Utility Act, but declined to issue a certificate of convenience and necessity on an area basis to any part of the land within the fence. The Commission reserved jurisdiction to hear the matter at a later date and to then issue appropriate certificates of convenience and necessity if later developments or a change in circumstances should justify it.
The Commission reserved full jurisdiction so to do and provided that nothing in this order would be construed as res adjudicata or prejudicial to the grandfather rights of either party upon any future hearing that might be held. The Commission found that no worthwhile purpose would be served at the time of the hearing by a grant of a certificate of public convenience and necessity to either of the applicants.
Mississippi Power Light Company appealed to the Chancery Court of Hinds County, Mississippi, and Delta Electric was summoned as a respondent in said appeal. In the chancery court the chancellor, considering matters that had happened since the hearing before the Public Service Commission, entered an order remanding the cause to the Commission for a further hearing in light of these after developed facts. From this decree the Mississippi Power Light Company appeals to this Court, and Delta Electric appears as appellee.
On June 23, 1941, the City of Greenville and the United States of America entered into a lease agreement under the terms of which the lands here involved were leased to the Government for a period beginning June 23, 1941, and ending June 30, 1941, but with a provision that the Government, at its option, might renew the lease from year to year at a rental of $1.00 per annum until June 30, 2040. The lease also contained a provision that the Government should have the right at any time during the term of the lease, or any renewal thereof, to purchase all of the property described in said lease. Supplements were later made to said lease, but for the purposes of this decision are not considered essential to discuss. On April 1, 1953, a contract was entered into by and between the United States of America and Mississippi Power Light Company whereby the Government was to purchase and receive from the power company electric service as requested by the Government at the said Greenville Air Base. This contract provided that it should continue in effect until terminated at the option of the Government.
The area within the fence at the said Air Base constituted approximately 2,000 acres. The United States Government had the said land under lease, and owned all of the buildings and other equipment there, including the distribution system whereby the electricity purchased by it from the Mississippi Power Light Company was distributed over the air base at such points as desired by it. The Power Company delivered the power to one point within the field, and from that point it was distributed over the field by the Government.
The Power Company contends that under the grandfather clause the Commission was required to issue to it a certificate of public convenience and necessity, and that under decisions of this Court such certificates should be issued on an area basis, and therefore the Commission was required to issue to it a certificate for the entire area of the Air Base within the fence.
The Commission held that the Power Company was selling power at wholesale to the Government. This particular point is not considered by us and we are not to be construed as so holding, but said question is left open to be determined when and if it is presented at a later date.
It will be noted that this area was in effect the land of the Government. It held a lease on it which could be extended to the year 2040, and during the existence of which lease it could, if it desired, purchase said land. The Government had also contracted with the power company to furnish such power as it needed, and provided that the Government could cancel that contract at any time it desired.
(Hn 1) It will be seen that the whole area of the Air Base was under the exclusive control of the Government. It could prevent anybody from entering there, and, if desired, could cancel its contract with the Power Company and install its own generating system, or contract with another company. The Public Service Commission could not force the Government to permit the Mississippi Power Light Company or any other public utility to serve the area.
Section 7716-05(b) of the Code provides:
The Commission shall issue a certificate of convenience and necessity to any person engaged in the construction or operation of such equipment or facility on the effective date of this act for the construction or operation then being conducted without requiring proof that public convenience and necessity will be served by such construction or operation . . . (Emphasis supplied)
The petitions by both parties were filed within the time provided by said section of the Code.
(Hn 2) It is true that this Court has held that the Commission could issue certificates on an area basis, and this should be done in the usual case. Capital Electric Power Ass'n. v. Mississippi Power Light Co., 240 Miss. 139, 125 So.2d 739 (1961); and in the case of Mississippi Power Co. v. East Mississippi Electric Power Ass'n., 244 Miss. 40, 140 So.2d 286 (1962), we held that the Act contemplated an award on an area basis and that same was authorized by the Act. However, in East Mississippi Electric Power Ass'n. v. City of Louisville, 168 So.2d 287 (Miss. 1964), the last case above mentioned was discussed and it was shown the certificates there involved authorized the power association to continue to serve those customers within the one-mile limit surrounding the City of Louisville in which the said City's municipal plant could operate without regulation by the Commission, and that the Commission did and could authorize or limit the right of the association to operate under these particular circumstances to those customers being served on the effective date of the Act.
(Hns. 3, 4) It was there held and is now reaffirmed by us that under peculiar and special circumstances the Commission may authorize the continuance of operations on a facility basis as they were being carried on on the effective date of the Act. We think the Commission in this particular case and under the special facts here existing had a right to decline at the time of the hearing to issue certificates of convenience and necessity on an area basis, but to authorize appellant to continue its operation as it was conducted at the time of the effective date of the Act, and that also the Commission had a right to reserve jurisdiction of the cause for the issuance of a certificate of convenience and necessity when and if the circumstances were changed so as to authorize such an issuance. If they had simply dismissed the petition and not reserved jurisdiction, the Power Company would not have had a petition filed within the period provided by the grandfather clause of the Public Utilities Act.
We agree with the chancellor insofar as he remanded the case to the Commission. However, we do not agree with the reasons assigned therefor because there was no evidence of such new developments in the record made before the Commission.
We simply affirm the order of the Commission as written and remand the case to the Commission for its further consideration when and if they deem it requisite or advisable.
The order of the Chancellor affirmed as herein indicated; the order of the Commission as written is affirmed; the cause remanded to the Commission.
Kyle, P.J., and Ethridge, Patterson and Inzer, JJ., concur.