Opinion
No. 43130.
October 19, 1964.
1. Power companies — one mile corridor area — rights of parties to operate in.
Electric power association which was permitted by the Public Service Commission to continue to render service to customers living around the city and being served by it on effective date of Act, which exempted the municipal electric system within one mile of the city from its provisions, suffered no violation of its right when the municipal electric system served the entire remainder of the one mile corridor. Sec. 7716-01(H), Code 1942.
Headnote as approved by Lee, C.J.
APPEAL from the Chancery Court of Winston County, ROBERT PRISOCK, Chancellor.
Floyd, Cameron, Deen Prichard, Meridian, for appellant.
I. Area certificate authorized by virtue of express terms of the Act and rights thereunder finally established by prior decision of Mississippi Supreme Court.
II. The certificate (franchise) holder has the right and duty to provide all service within the certified area and may obtain injunctive relief to protect such rights.
III. Status of appellee as municipal corporation cannot alter vested certificate rights nor be used as basis to thwart "manifest policy" of the Act.
IV. Appellant's grandfather certificate having been established and adjudicated by final judgment may not be modified or limited by Chancery Court.
Collation of authorities: Adams v. Kuykendall, 83 Miss. 571, 35 So. 830; Bishop v. City of Meridian, 223 Miss. 703, 79 So.2d 221, 815; 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; Capital Electric Power Assn. v. Mississippi Power Light Co., 250 Miss. 514, 150 So.2d 534; C.I.T. Corp. v. Turner, 248 Miss. 517, 157 So.2d 648; City of Los Angeles v. Los Angeles Gas Electric Corp., 251 U.S. 32, 40 S.Ct. 76; Delta Electric Power Assn. v. Mississippi Power Light Co., 250 Miss. 482, 149 So.2d 504; Frost v. Corporation Commission of Oklahoma, 278 U.S. 515, 73 L.Ed. 483, 49 S.Ct. 235; Garraway v. Retail Credit Co., 244 Miss. 376, 141 So.2d 727; Gwin v. Greenwood, 150 Miss. 656, 115 So. 890; Hunter v. Pittsburgh, 207 U.S. 161; Lyle Cashion Co. v. McKendrick, 227 Miss. 894, 87 So.2d 289; Mississippi College v. May, 241 Miss. 359, 128 So.2d 557; Mississippi Power Co. v. East Mississippi Electric Power Assn., 244 Miss. 40, 140 So.2d 286; Moss v. Jourdan, 129 Miss. 598, 92 So.2d 689; Payne v. Jackson City Lines, 220 Miss. 180, 70 So.2d 520; Pitts v. Carothers, 152 Miss. 694, 120 So. 830; Public Utilities Comm. v. City of Loveland (Colo.), 289 P. 1090; Russell v. Sebastian, 233 U.S. 195; Simpson v. City of Gulfport, 239 Miss. 136, 121 So.2d 409; Chap. 372, Secs. 1H, 5(b, d, f), Laws 1956; 18 Am. Jur., Electricity, Sec. 34; 30 Am. Jur., Judgments, Sec. 311; 37 Am. Jur., Municipal Corporations, Sec. 18; 43 Am. Jur., Public Utilities and Services, Sec. 18.
J. Hoy Hathorn, Louisville, for appellees.
I. Area certificate authorized by virtue of express terms of the Act and rights thereunder finally established by prior decision of Mississippi Supreme Court.
II. The certificate (franchise) holder has the right and duty to provide all service within the certificated area and may obtain injunctive relief to protect such rights.
III. Status of appellee as municipal corporation cannot alter vested certificate rights nor be used as basis to thwart "manifest policy" of the Act.
IV. Appellant's grandfather certificate having been established and adjudicated by final judgment may not be modified or limited by Chancery Court.
Collation of authorities: City of Picayune v. Quick Grice, Inc., 238 Miss. 429, 117 So.2d 718; Clark v. Thompson, 206 F. Supp. 539 affirmed 313 F.2d 637; Delta Electric Power Assn. v. Mississippi Power Light Co., 250 Miss. 482, 149 So.2d 504; Gwin v. Greenwood, 150 Miss. 656, 115 So. 890; Harris v. Smiley, 36 Okla. 89, 128 P. 276; Illinois Central R. Co. v. Mississippi Public Service Comm., 220 Miss. 439, 71 So.2d 176; Lyle Cashion Co. v. McKendrick, 227 Miss. 894, 87 So.2d 289; Mississippi Power Co. v. East Mississippi Electric Power Assn., 244 Miss. 40, 140 So.2d 286; Stigall v. Sharkey County, 213 Miss. 798, 57 So.2d 146, 58 So.2d 5; Stovall v. Stovall, 218 Miss. 364, 67 So.2d 391; Swain v. Oklahoma R. Co., 168 Okla. 133, 32 P.2d 51; Secs. 3519-18, 3519-28, 5430, 5435, 5527, Code 1942; Chap. 372, Laws 1956; 43 Am. Jur., Public Utilities and Services, Sec. 17 p. 582.
Hedgepeth, Price Hedgepeth, Jackson; Pittman, King Pittman, Hattiesburg, Amici Curiae.
I. The City of Louisville was bound by the proceedings in the Mississippi Public Service Commission and the final adjudication of this Court to accede to the certificate granted to the appellant. C.I.T. Corp. v. Turner, 248 Miss. 517, 157 So.2d 648; City of Jackson v. Holliday, 246 Miss. 412, 149 So.2d 525; Dean v. Board of Supervisors of DeSoto County, 135 Miss. 268, 99 So. 263; Etheridge v. Webb, 210 Miss. 729, 50 So.2d 603; Golden v. Golden, 246 Miss. 562, 151 So.2d 598; Kimbrough v. Wright, 211 Miss. 63, 50 So.2d 909; Lyle Cashion Co. v. McKendrick, 227 Miss. 894, 87 So.2d 289; Mississippi Power Co. v. East Mississippi Elec. Power Assn., 244 Miss. 40, 140 So.2d 286; Pan American Petroleum Corp. v. Gully, 179 Miss. 847, 175 So. 185; Watkins v. Mississippi State Board of Pharmacy, 170 Miss. 26, 154 So. 277; Williams v. Board of Supervisors of DeSoto County, 139 Miss. 78, 103 So. 812; Secs. 4475 et seq., 5463 et seq., 7716-01(H), 7716-04, 7716-05, 7716-06, Code 1942.
II. A certificate of public convenience and necessity granted under the Act cannot be vacated by municipal action. 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., 250 Miss. 150 So.2d 534; Delta Electric Power Assn. v. Mississippi Power Light Co., 250 Miss. 482, 149 So.2d 504; Mississippi Power Co. v. East Mississippi Electric Power Assn., supra; Oliphant v. Carthage Bank, 224 Miss. 386, 80 So.2d 63; Payne v. Jackson City Lines, 220 Miss. 180, 70 So.2d 520; Superior Oil Co. v. Foote, 214 Miss. 857, 59 So.2d 85; Southern Bell Tel. Tel. Co. v. City of Meridian, 241 Miss. 678, 131 So.2d 666; Teche Lines v. Board of Supervisors of Forrest County, 65 Miss. 594, 142 So. 24; Secs. 2780, 7632 et seq., 7716-01 et seq., 7716-04, 7716-05(b, c, d, e, f), Code 1942.
III. The exemption of a municipality from ordinary regulation by the Mississippi Public Service Commission cannot be enlarged into a superior power of public utility regulation. 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., 250 Miss. 514, 125 So.2d 739; Delta Electric Power Assn. v. Mississippi Power Light Co., supra; Mississippi Power Co. v. East Mississippi Electric Power Assn., supra; United Gas Corp. v. City of Philadelphia, 238 Miss. 409, 118 So.2d 618; Art. I Sec. X Cl. 1, Sec. 1 Amendment XIV, United States Constitution; Art. 3 Secs. 14, 16, Constitution 1890; Secs. 3374-73, 3374-85, 3374-119, 3374-120, 3374-139, 7716-05(g), Code 1942.
IV. The Court below erred in refusing to grant injunctive relief to the appellant to protect its certificate by remedying present injury and by preventing further and irreparable injury. Payne v. Jackson City Lines, supra; Southern Bell Tel. Tel. Co. v. City of Meridian, supra.
This cause arose from a bill of complaint by East Mississippi Electric Power Association, a corporation, against the City of Louisville and the Louisville Electric System, a department of the city, and others for the purpose of obtaining an injunction which would restrain the defendants from the future use or construction of electric lines and facilities in the complainant's alleged "grandfather" certificated area, and require the defendants to remove their lines and facilities from such area.
The answer of the defendants denied that the area here involved was granted by the Public Service Commission to the complainant; and also denied all material allegations of the bill.
After a full hearing, the court dismissed the bill of complaint; and from that action, the association appealed.
This litigation is in the nature of a sequel to Mississippi Power Co., et al v. East Mississippi Electric Power Assn., et al, 244 Miss. 40, 140 So.2d 286. In that case East Mississippi was granted a certificate of public convenience and necessity by the Public Service Commission, covering all or portions of eleven counties. Louisville Electric System, the appellee here, contested the application of East Mississippi, as to the area within one mile around and adjacent to the City of Louisville, contending that the city had the sole right to operate within the one mile limit around the city.
The opinion in the above case cited Section 7716-01H, Code 1942 Rec., which is 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."
As against Louisville Electric System's contention that the above quoted statute gave it the sole right to operate within the one mile limit, the opinion said: "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." (Emphasis supplied.)
The appellant claims that it has a certificate for the area here in question. It cites Delta Electric Power Assn. v. Mississippi Power Light Co., et al., 250 Miss. 482, 149 So.2d 504; Capital Electric Power Assn. v. Mississippi Power Light Co., et al., 250 Miss. 514, 150 So.2d 534, and other cases, involving similar principles.
When the order, granting the association's certificate under date of April 1, 1959, and amended April 27 and December 10, 1959, is considered, it is clear that the commission intended to allot to the association only the area in the corridor in which it was operating, that is, where it was serving several customers, whose properties were adjacent to these lines as they came into and proceeded out of the City of Louisville. It must be remembered that the association, for the purpose of serving the rural areas, obtained its current from transmission lines which ran through the city. The rights of the parties were of course limited by the terms of the certificate. The association could continue to render service to the customers that were being served by it on the effective date of the act. This constituted its certificated area, lying within the one mile corridor around the City of Louisville. In this particular instance, there was no violation of the intent to prevent duplicated service.
(Hn 1) Clearly it was the intent of the commission to recognize that the association, on the effective date of the act, was rendering adequate and sufficient service to several customers within the one mile corridor. Consequently, the commission did the equitable thing. It permitted the association to continue to serve the customers which it was serving on March 29, 1956, the effective date of the act which gave it authority to grant certificates of public convenience and necessity. The city was unrestricted in its right to serve the entire remainder of the one mile corridor.
It should be borne in mind that in Delta Electric Power Assn. v. Mississippi Power Light Co., et al, supra, and Capital Electric Power Assn. v. Mississippi Power Light Co., et al, supra, the cities of Winona and Clinton were not operating electric utilities. Besides, the two associations, for sometime prior to the awards to them, had been operating electric utilities within those particularly described areas. The defendants in those two cases held franchises in those cities by reason of legal grants from the municipalities. Subsequently, when the corporate limits, in each instance, were extended, the defendants attempted to extend their franchises over the added territory. There is no conflict whatever in the principles announced in that line of cases and the principles involved in the commission's actions in the present case. It is clear therefore, that there was no violation by the City of Louisville and Louisville Electric System, of the rights of the association, as granted to it by the Public Service Commission. Consequently, the decree of the trial court must be, and it is, affirmed.
Affirmed.
Ethridge, Gillespie, McElroy and Jones, JJ., concur