Summary
In Miss. Power Co. v. East Miss. Elec. Power Ass'n., 244 Miss. 40, 140 So.2d 286 (1962), the utility was already operating within one mile of the City of Louisville when the law creating the Public Service Commission was enacted.
Summary of this case from Town of Enterprise v. Mississippi Public Service CommissionOpinion
No. 42080.
April 23, 1962.
1. Public Service Commission — power companies — "grandfather clause" — Commission justified in allotting power company area within one mile corridor adjacent to municipality owning and operating its own power plant — statutes.
Public Service Commission was justified in allotting to power company area within one mile corridor adjacent to municipality owning and operating its own power company, where power company had operated within such corridor prior to effective date of statute providing that public utility owned or operated by municipality should not be subject to provisions of Act, except as to extension of utilities greater than one mile outside of corporate boundaries. Sec. 7716-01 subd. H, Code 1942.
2. Public Service Commission — evidence supported order of Commission granting certificate.
Evidence supported order of Public Service Commission granting power company certificate of public convenience and necessity.
3. Public Service Commission — Commission authorized to award certificate on area basis rather than a facility basis.
Public Service Commission was authorized to award certificate of public convenience and necessity on area basis rather than on facility basis. Secs. 7706-05, 7716-06, Code 1942.
Headnotes as approved by Jones, J.
APPEAL from the Chancery Court of Hinds County; J.C. STENNETT, Chancellor.
J. Hoy Hathorn, Louisville, for appellant, Louisville Electric System.
I. The Public Service Commission of Mississippi erred in granting The East Mississippi Electric Power Association a certificate incorporating areas within one-mile radius of the corporate limits of the city of Louisville, Mississippi as they existed on the effective date of the Act, to-wit: March 29, 1956. Capital Electric Power Assn. v. Mississippi Power Light Co., 240 Miss. 139, 125 So.2d 739; Farmers Electric Cooperative v. Arkansas Power Light Co., 220 Ark. 652, 249 S.W.2d 837; Seal v. Andrews, 214 Miss. 215, 58 So.2d 504; Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S.Ct. 366; Secs. 3519-18, 3519-28, 5430, 5527, 5528, 7635 (L), 7716-01, 7716-38, Code 1942; 29 C.J.S., Electricity, 498; 63 C.J.S., Sec. 1052 (1) p. 673; Opinions of Attorney General, December 7, 1956, January 2, 1957, January 24, 1957.
Eaton, Cottrell, Galloway Lang, Gulfport, for appellant, Mississippi Power Company.
I. The orders of the Commission appealed from are erroneous insofar as they fix boundaries for areas described in such orders because (a) they are contrary to the overwhelming weight of the testimony; (b) not supported by any substantial evidence; (c) are in violation of the provisions of Section 5 (b) of the Act; (d) are contrary to right, equity and good conscience; and (e) operate to deprive appellant unlawfully of its rights in contravention of the Fourteenth Amendment of the Constitution of the United States and Section 14 of the Constitution of the State of Mississippi. Capital Electric Power Assn. v. Mississippi Power Light Co., 240 Miss. 139, 125 So.2d 739; Gulf, Mobile Ohio R. Co. v. Luter Motor Express, 190 Miss. 523, 1 So.2d 231; Chap. 372, Laws 1956.
II. The orders of the Commission appealed from are erroneous in that they fail to provide that service areas for appellee therein described are non-exclusive. Bailey v. Carolina Power Light Co., 212 N.C. 768, 195 S.E. 64; Beaty v. Knowles, 4 Peters 168, 7 L.Ed. 813; Charles River Bridge v. Warren Bridge, 11 Peters 470, 9 L.Ed. 938; Collins v. Sherman, 31 Miss. 679; Providence Bank v. Billings, 4 Peters 514, 7 L.Ed. 939; San Miguel Power Assn. v. Utah Public Service Comm., 292 P.2d 511; Sheridan County Electric Co-Op v. Montana-Dakota Utilities Co., 128 Mont. 84, 270 P.2d 742; South Mississippi Airways v. Chicago Southern Airlines, 200 Miss. 329, 26 So.2d 455, 165 A.L.R. 906; Secs. 3374-85, 3374-118 — 3374-120, 5463-99, Code 1942.
III. The orders of the Commission appealed from are erroneous in that they purport to authorize appellee to serve designated areas as such rather than granting to the appellee the right to continue to operate facilities in such areas which appellee was operating on the effective date of the Act.
Floyd, Cameron Deen, Meridian, for appellee, East Mississippi Electric Power Association in reply to brief of Louisville Electric System.
I. Certificate was authorized by virtue of vested legal right to serve by reason of prior service and by virtue of express terms of the Act, particularly Section 5(b). Sec. 5463, Code 1942; Chap. 372, Laws 1956.
II. Right of appellee to certificate is settled by recent decision of Mississippi Supreme Court. Capital Electric Power Assn. v. McGuffee, 226 Miss. 227, 83 So.2d 837; Capital Electric Power Assn. v. Mississippi Power Light Co., 240 Miss. 139, 125 So.2d 739; 43 Am. Jur., Public Utilities and Service, Sec. 18.
III. Section 1 H of the Act is a limited exemption, not a grant. Beeman v. Buck, 9 Sm. M. 207; Butler v. Craig, 27 Miss. 628; Capital Electric Power Assn. v. Mississippi Power Light Co., supra; City of Los Angeles v. Los Angeles Gas Electric Corp., 251 U.S. 32, 40 S.Ct. 76; In re Cloward's Estate, 95 Utah 453, 92 P.2d 336; Lewis v. Williams, 186 Miss. 701, 191 So. 479; 50 Am. Jur., Statutes, Secs. 421, 432; 82 C.J.S., Statutes, Sec. 382.
IV. Status of appellant as municipal system does not alter rights vested in and granted to appellee by constitutional principles and the Act. Adams v. Kuykendall, 83 Miss. 571, 35 So. 830; Bishop v. City of Meridian, 223 Miss. 703, 79 So.2d 221; Capital Electric Power Assn. v. Mississippi Power Light Co., supra; City of Pritchard v. Alabama Power Co. (Ala.), 175 So. 294; Gwin v. City of Greenwood, 150 Miss. 656, 115 So. 890; Hunter v. Pittsburgh, 207 U.S. 161; In re Cloward's Estate, supra; Public Utilities Comm. v. City of Loveland, 289 P. 1090; Russell v. Sebastian, 233 U.S. 195; 18 Am. Jur., Electricity, Sec. 14; 37 Am. Jur., Municipal Corporations, Sec. 18.
V. The Act is to be construed so as to serve the manifest policy thereof. Alexander v. Graves, 178 Miss. 583, 173 So. 417; Capital Electric Power Assn. v. Mississippi Power Light Co., supra; Gambrill v. Gulf State Creosoting Co., 216 Miss. 505, 62 So.2d 772; Ziegler v. Ziegler, 174 Miss. 302, 164 So. 768.
VI. The order of the Commission, affirmed by the Chancery Court, are supported by substantial evidence and are in accord with the manifest weight of the evidence. Dixie Greyhound Lines, Inc., v. Mississippi Public Service Comm., 190 Miss. 704, 200 So. 579; Gulf, Mobile Ohio R. Co. v. Luter Motor Express, 194 Miss. 407, 12 So.2d 420; Mississippi Power Light Co. v. Blake, 236 Miss. 207, 109 So.2d 657; Planter's Bank v. Garrott, 239 Miss. 248, 122 So.2d 256; West Bros. Inc. v. Illinois Central R. Co., 222 Miss. 335, 75 So.2d 723;
Floyd, Cameron Deen, Meridian, for appellees, East Mississippi Electric Power Association, in reply to brief of Mississippi Power Company.
I. Certificate was authorized by virtue of vested legal right to serve by reason of prior service and by virtue of express terms of the Act, particularly Section 5 (b). Capital Electric Power Assn. v. Mississippi Power Light Co., 240 Miss. 139, 125 So.2d 739; Secs. 5463 et seq., 7716-04 et seq., Code 1942.
II. The certificate was properly granted on an area basis. Capital Electric Power Assn. v. Mississippi Power Light Co., 240 Miss. 139, 125 So.2d 739; Mississippi Public Service Commission Rules 1, 2, 3.
III. Right of appellee to certificate is settled by recent Mississippi Supreme Court decision. Alton Railroad Co. v. United States, and United States v. Alton Railroad Co., 62 S.Ct. 432; Capital Electric Power Assn. v. McGuffee, 226 Miss. 227, 83 So.2d 837; Dixie Greyhound Lines, Inc. v. American Buslines, Inc., 209 Miss. 874, 48 So.2d 584; Dixie Greyhound Lines, Inc. v. Mississippi Public Service Comm., 190 Miss. 704, 200 So. 579; F. W. Express, Inc. v. Delta Motor Line, Inc., 223 Miss. 726, 78 So.2d 887; Gulf, Mobile Ohio R. Co. v. Luter Motor Express, 194 Miss. 407, 12 So.2d 420; Howard Hall Co., Inc. v. United States, 62 S.Ct. 732; Mississippi Power Light Co. v. Blake, 236 Miss. 207, 109 So.2d 657; Planter's Bank v. Garrott, 239 Miss. 248, 122 So.2d 256; United States v. Carolina Motor Freight Carriers Corp., 62 S.Ct. 722; West Bros., Inc. v. Illinois Central R. Co., 222 Miss. 335, 75 So.2d 723; 73 C.J.S., Public Utilities, Sec. 42 p. 1099.
The Public Service Commission granted to East Mississippi Electric Power Association a certificate of public convenience and necessity covering all or portions of eleven counties in Mississippi. The application was contested by Mississippi Power Company and Louisville Electric System of the City of Louisville, Mississippi, the Mississippi Power Company contesting as to five counties of the eleven, towit: Newton, Lauderdale, Clarke, Wayne and Jasper; and the Louisville Electric System contesting as to the area within one mile around and adjacent to the City of Louisville. There were some other areas involved insofar as Louisville was concerned but they were eliminated during the trial and on appeal here only the corridor above mentioned is involved. The Chancery Court of Hinds County affirmed the order of the Commission and both the protestants appeal here, so there are really two appeals before this Court.
The appellee, East Mississippi Electric Power Association, filed its application within the time permitted under Section 7716-05(b) of the Code of 1942, commonly referred to as the "grandfather Clause." It attached to its application as exhibits maps of the territory or area for which it requested a certificate.
Mississippi Power Company also had an application pending and it, as aforesaid, contested the application of East Mississippi insofar as their conflicting interests were involved in the said five counties.
Much testimony was heard by the Commission. To detail it would require a book. Many maps (including aerial maps) and exhibits were introduced, the evidence and the maps disclosing the lines of the opposing companies, and disclosing to the Commission their conflicting interests. East Mississippi, during the trial, made various adjustments of the description of the areas desired or claimed by it, all of such changes constricting the areas sought to be covered. After a full and complete hearing, the Public Service Commission entered its order awarding to the East Mississippi Electric Power Association a certificate of public convenience and necessity for the areas described in such order. Under the orders we understand some lines and customers of East Mississippi and some lines and customers of Mississippi Power Company were frozen. However, it appears that in comparison with the entire area and total number of customers, the lines and customers so frozen were small.
I.
(Hn 1) Appellant, Louisville Electric System, appeals and assigns as error the fact that the Commission allotted to East Mississippi some area adjacent to the corporate limits of the City of Louisville and extending for a distance of one mile from such boundaries. The Louisville System contends that under Section 7716-01 H of the Code of 1942 it had the sole right and privilege of operating within this area. The said subdivision H of said Act reads as follows:
"H. Any public utility as defined in paragraph D above, owned or operated by a municipality shall not be subject to the provisions of this act, except as to extension of utilities greater than one mile outside of corporate boundaries after the effective date of this act."
Louisville Electric System seems to contend that this section conveys to it the sole right to operate within one mile of the City limits of the City of Louisville. The proof showed that East Mississippi was operating in the area adjacent to the city limits and within said one mile corridor on the effective date of the act.
We do not deem this provision of the act as a grant but consider it as an exemption from regulation. We cannot think that the legislature intended by this exemption to take from a company that was operating within said corridor on the date of the act its right to operate therein and we think the Public Service Commission was justified in allotting to East Mississippi that area within said corridor in which it was operating on the effective date of the act.
II.
(Hn 2) Mississippi Power Company appeals. Its argument is that the orders of the Commission are (a) contrary to the overwhelming weight of the testimony; (b) not supported by any substantial evidence; (c) in violation of the provisions of Section 5(b) above mentioned; (d) contrary to right, equity and good conscience; (e) operate to deprive appellant of its rights. They also allege error in that the orders failed to provide that the service areas then described and allotted to East Mississippi are non-exclusive. Further, they argue that the orders are erroneous in that they authorize East Mississippi to serve designated areas as such rather than granting the right to continue to operate facilities in such areas which were being operated on the effective date of the act.
As heretofore stated, there was a mass of evidence, maps (including aerial maps), and other testimony showing the facilities and operations of the opposing companies. We think the evidence was sufficient to support the order of the Commission.
(Hn 3) The question as to whether the right of East Mississippi in said areas is exclusive depends, under the act and decisions of this Court, upon whether East Mississippi renders adequate service. Sec. 7716-05(f), Code of 1942; Capital Electric Power Association v. Mississippi Power Light Company, 240 Miss. 139, 125 So.2d 739. As aforesaid, complaint is made that the order of the Commission authorizes East Mississippi to serve designated areas; in other words, that the award is made on an area basis rather than a facility basis. We think such an award is contemplated and authorized by the act.
In Section 7706-15, Code of 1942, we find "service area" maps mentioned; "certified areas" mentioned twice in subdivision (d); the "geographical area of such municipality" mentioned in subdivision (e); "any area covered by such utility's certificate" mentioned in subdivision (f); and (f) also provides for the cancellation of the certificate for "the area" where the holder of the certificate fails to comply with the order of the Commission. The last paragraph of this section provides that any company heretofore operating under the Commission and which has "its service area maps" on file might be granted a certificate of convenience and necessity without requiring it to first obtain a municipal franchise.
Section 7716-06 provides for the extension of existing facilities "within the certified area." The case of Capital Electric Power Association v. Mississippi Power Light Company, supra, recognizes the area provisions of the act.
Mississippi Power Company also asserts that East Mississippi is not such a public utility as contemplated by the act because its service is generally restricted to members of the association. But see Capital Electric Power Association v. McGuffee, 226 Miss. 227, 83 So.2d 837 .
This case to us is peculiarly one that should be determined by a body such as the Public Service Commission. We have reviewed the evidence and the law and find that the action of the Commission is supported by substantial evidence, is not arbitrary or capricious, and the case is therefore affirmed.
Affirmed.
McGehee, C.J., and Ethridge, Gillespie and Rodgers, JJ., concur.