Franklin Power & Light Co. v. Middle Tennessee Electric Membership Corp.

Opinion on Petition to Rehear

Counsel for the co-op has filed herein a dignified and respectful petition to rehear. In this petition it is insisted that we overlooked:

“1. The Town of Franklin has not attempted to take the Complainant’s property. In fact, the Town of Franklin recognized the rights of Complainant to the area,s in question.
“2. The Defendant, Franklin Power and Light Company, a privately owned non-municipal utility, does not have the right to take by eminent domain or other- . wise the property of the Complainant which is devoted to a like public use, the furnishing of electricity.
“3. In any event, there has been no valid .judicial determination of the value of Complainant’s property. to be taken. The appraisal made by the Tennessee-. .Valley Authority does not satisfy the due process re-' quirements of the State and Federal Constitutions.
“4: There was no contract between the parties requiring the Complainant to sell its facilities to the Defendant for the value placed on them by the Tennessee Valley Authority, and the only Court that specifically passed on this question was the Court of Appeals, and it so held.”

We have again gone over this record and the various exhibits thereto and feel that the only question presented in this case when it was tried, submitted to the Chancellor, and presented in the Court of Appeals has been *194sufficiently, and we feel correctly, answered in our original opinion.

This petitioner, the Middle Tennessee Electric Membership Corporation, in its assignments of error and brief to the Court of Appeals stated: “The issue in this case can be stated in one question. Does an electric cooperative lose the right to serve its members in an area after it has been annexed by a municipality?” This was the only question presented and the only question argued in that court. The co-op filed cross assignments of error, as it had a right to do, when the matter was presented to this Court on petition for certiorari. We answered those, we think, sufficiently in our original opinion.

The co-op now in support of this petition merely cites certain exhibits and a statement of the Court of Appeals, and refers to page 17 of the opinion of the Court of Appeals for that statement. We have the opinion of the Court of Appeals before us and the only thing that this opinion does with reference to the questions attempted now to be presented herein purely and simply says that the letter of September 25, 1956, referred to, “does not contain any language which could be construed as a contract to sell the facilities involved in this suit, even if it should be conceded that Mr. Howard and Mr. Mc-Masters had proper authority to make such a contract of sale.

“Therefore, it appears to us that by weight of authority from other jurisdictions, and in accordance with the principles of equity and justice prevailing in this State, the co-op should be allowed to continue to serve from distribution lines constructed in the newly annexed areas prior to November 2, 1964, which was *195the date of annexation, snch persons who were its members on that date and who desire to continue their membership and to receive service from the co-op.”

Obvionsly, from what the Conrt of Appeals says the co-op is merely using this argument now on its petition to rehear as another argument for their position that the Town of Franklin does not have the right to serve this newly annexed area. We think we have sufficiently answered all these questions in our original opinion.

Since there is nothing new presented here, the petition to rehear is denied.