Opinion
No. 43071.
May 25, 1964.
1. Public Service Commission — order granting electric power association certificate to serve athletic field, based on substantial evidence.
Order of Public Service Commission granting power association order prohibiting power company from serving school athletic field, and awarding a certificate of convenience and necessity to association to supply electrical service to field was based on substantial evidence.
2. Constitutional law — public necessity for taking, a legislative question — Legislature may delegate that function to Public Service Commission.
Since Legislature had right to determine public necessity, it had power to delegate that function to Public Service Commission.
3. Public Service Commission — action of Commission in granting certificate not to be overturned — general rule.
Action of Public Service Commission in granting certificate of public convenience and necessity cannot be overturned if it is supported by substantial evidence, and it is not arbitrary or capricious, or beyond its power to make, and does not violate some constitutional right.
Headnotes as approved by Patterson, J.
APPEAL from the Chancery Court of Hinds County, W.T. HORTON, Chancellor.
Eaton, Cottrell, Galloway Lang, Gulfport, for appellant.
I. The Commission's order denying appellant's right to serve the athletic field is contrary to the evidence and in violation of the Act. Alabama Power Co. v. Southern Pine Electric Co-operative, 118 So.2d 907, 33 P.U.R. 3d 301; Capital Electric Power Assn. v. Mississippi Power Light Co., 240 Miss. 139, 125 So.2d 739; Mississippi Power Co. v. East Mississippi Electric Power Assn., 244 Miss. 40, 140 So.2d 286; Pee Dee Electric Co-operative v. South Carolina Public Service Comm. (S.C.), 92 S.E.2d 171, 13 P.U.R. 3d 506; Pee Dee Electric Membership Corp. v. Duke Power Co. (N.C.), 37 P.U.R. 3d 407; Re Edington (N.M.), 10 P.U.R. 3d 146; Re Kansas Pipe Line Gas Co., 30 P.U.R. (N.S.) 321; Re McElvain (Colo.), 66 P.U.R. (N.S.) 394; Re Washakie Rural Electric Co. (Wyo.), 92 P.U.R. (N.S.) 505; Secs. 7716-01, 7716-38, Code 1942.
II. The finding of the Commission, and the order granting to appellee a certificate of convenience and necessity to serve the athletic field constitute error because such finding is contrary to the evidence, and the granting of a certificate is contrary both to the evidence and the Act.
III. The order of the Commission, affirmed by the lower court, in directing appellant to cease and desist from rendering service to the athletic field is erroneous.
Floyd, Cameron, Deen Prichard, Meridian, for appellee.
I. Cited and discussed the following authorities. Camden Transit Co. v. Owen (Ark.), 192 S.W.2d 757; 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; Mississippi Power Co. v. East Mississippi Electric Power Assn., 244 Miss. 40, 140 So.2d 286; Mississippi Power Light Co. v. Blake, 236 Miss. 207, 109 So.2d 657; West Brothers, Inc. v. Illinois Central R. Co., 222 Miss. 335, 75 So.2d 723; Sec. 7716-04 et seq., Code 1942; Chap. 372, Laws 1956; Public Service Commission Rule 6F(2)(b).
This is an appeal by Mississippi Power Company from a final decree of the Chancery Court of Hinds County, Mississippi, affirming an order of the Public Service Commission which granted the East Mississippi Electric Power Association a cease and desist order against appellant prohibiting it from servicing the athletic field of Clarksdale School situated in Clarke County, Mississippi, and awarding to East Mississippi Electric Power Association a certificate of public convenience and necessity for the electrical service of this field.
Appellant assigns as error (1) the Commission's order denying appellant the right to service the field is contrary to the evidence and in violation of the Act; (2) the finding of the Commission and the order granting to appellee a certificate of convenience and necessity to serve the athletic field constitute error because such finding is contrary to the evidence, and the granting of the certificate is contrary both to the evidence and the Act; (3) the order of the Commission, affirmed by the lower court, in directing appellant to cease and desist from rendering service to the athletic field is erroneous.
(Hn 1) The issues are thus factual. The testimony was heard and resolved by the Commission in favor of appellees. From the oral evidence and the exhibits introduced, two of which depict the power lines of appellee traversing the athletic field, we are unable to say that the Commission's order was not based on substantial evidence. We repeat what we have stated in prior cases:
(Hn 2) "Since the legislature had the right and power to determine the public necessity, it of course also had the power to delegate that function to the Public Service Commission. (Hn 3) The action of the Commission, in granting a certificate, cannot be overturned if it is supported by substantial evidence, and is not arbitrary or capricious, or beyond its power to make, and does not violate some constitutional right." Miss. Power Light Co. v. Blake, 236 Miss. 207, 109 So.2d 657.
Affirmed.
Lee, C.J., and McElroy, Rodgers and Brady, JJ., concur.