dissenting.
In my opinion, Forrest City had a right to lease its power plant and auxiliary equipment to the Arkansas Power & Light Company, and enter into a contract with that organization to serve the city. Under the holding of the Majority, it would certainly appear logical that the city, if and when it resumes its operation of the municipal power plant, will be forced to reimburse the power company for whatever property or assets the company gives up to the Woodruff Cooperative. This seems to me to be in conflict with Section 3 of the Act which provides that none of the provisions of Act 342 shall in any manner impair the right of any municipality to “acquire, construct, expand, maintain, or operate1 any electric generation, transmission or distribution facilities within the corporate limits of said city, town or village * * V’2 That section does not contemplate that a city shall give up anything of value in order to service its customers.3 I feel that this Court has placed a restriction upon the cities that the Legislature did not intend.
I firmly believe in the principle set forth in Act 85 of 1955, i.e., an affected cooperative should receive an exchange of territory or customers to compensate for that which it is forced to give up to a private utility, and, in the case before us, if the proof reflected that this lease contract had been entered into after the passage of Act 85 — or after the Yale & Towne organization had decided to move to Forrest City, — an entirely different situation would exist. Of course, under the evidence in this case, there can be no contention that the lease arrangement between the city and power company was merely a subterfuge to take Woodruffs territory. The proof is undisputed that the city had owned and operated its municipal electric system for nearly fifty years and that this lease agreement was entered into in 1948, becoming effective in 1951 (after the power company had made extensive improvements required under the contract), at which time the company took over the operation of the city’s plant and distribution system. This was several (about five) years before Yale & Towne moved into the area, and, as far as I can determine, several years before it was even contemplated that such an event would happen. While in this particular instance, the new territory will likely be profitable, it must be remembered, that if it were otherwise, and the city had annexed territory which would prove unprofitable for the power company to serve, under the provisions of the lease, the latter could be compelled to perform. This loss of territory was due to action initiated by the citizens of St. Francis County, resulting in the county court order of December 10, 1956, and resolution of the City Council in December, 1956. In January, 1957, in conformity with the action of the council, the mayor wrote the power company, directing the company to provide service to the Yale & Towne plant.
For the reasons indicated, I would affirm the judgment, and therefore, respectfully dissent.
Emphasis supplied.
This identical provision is also contained in Act 10S of 1957.
The city did voluntarily offer to assign nine other customers to Woodruff to replace the nine taken from it, but the offer was refused.