dissenting.
In respectfully dissenting to the majority opinion, I want to state at the outset that I do not disagree with any of the cases cited therein. The cases, as I view them, simply do not touch top, side nor bottom the issues involved in this lawsuit. This dissent is based wholly upon the clear language of Section 5 of the contract between the United States and the Arkansas Power.& Light Company. This section is headed: “Public Regulation and Change of Rates.” The title alone shows that two subjects are covered in Section 5: (1) Public Regulation; and (2) Change of Rates. The first sentence in Section 5 is as follows:
“Service furnished under this contract shall be subject to regulation in the manner and to the extent prescribed by law by any Federal, State, or local regulatory commission having jurisdiction.” (Emphasis supplied)
I can place only one interpretation upon this sentence and that is the United States voluntarily submitted to the regulations of the commission having jurisdiction. In reading Section 5 and the contract in its entirety I am unable to find one word indicating that it was the intention of the United States to limit the jurisdiction to which it voluntarily submitted to rates alone. Section 5, as I see it, (1) submits the United States to general public utility regulation, including (2) regulation of rates.
It must be conceded that under our law the Public Service Commission is the “regulatory commission having jurisdiction.” This being true, I can see no good reason for abandoning our well settled rule that we only review the following four questions on appeals from the Public Service Commission:
1. Is the Commission’s order supported by substantial evidence?
2. Is the Commission’s order free from fraud?
3. Is the Commission’s order arbitrary?
4. Does the order of the Commission violate any right of the appellant under the United States or State Constitutions? See: Inc. Town of Emerson v. Ark. Public Service Commission, 227 Ark. 20, 295 S. W. 2d 778.
Nowhere in the record is it seriously indicated that any of the above questions could be answered in the affirmative. In fact, I am convinced that the Commission’s Order is the only logical conclusion that could possibly be reached in this case under the circumstances. The United States indicated its recognition of the clear terms of its contract by its failure to intervene in this lawsuit. The majority opinion, in effect, is saying that this does not matter; Arkansas Power & Light Company is entitled to all the privileges and immunities of the United States Government, yea even entitled to rights that the Government itself is not claiming. The states of this Union have already, voluntarily or otherwise, relinquished too many rights to the central Government without our forcing upon a contractor with the Government rights which the Government lias voluntarily relinquished to our State-utility regulatory authority.
For the reasons stated above, I respectfully dissent.