Central Louisiana Electric Co. v. Louisiana Public Service Commission

SUMMERS, Justice

(dissenting).

The majority opinion finds that the Public Service Commission has no jurisdiction to hear this customer dispute involving an electric cooperative. It holds that the provisions of La.R.S. 45 :123, which require an electric public utility to obtain a certificate of public convenience and necessity from the Commission before serving customers *550already receiving service from another electric public utility, do not apply to electric cooperatives because electric cooperatives cannot be regarded as electric public utilities.

The opinion refers to this court’s decision in Louisiana Power & Light Company v. Louisiana Public Service Commission, 250 La. 596, 197 So.2d 638 (1967) and approves the reasons therein assigned as its own. The reasons assigned in the cited case for holding that electric cooperatives are not public utilities are^ — -“(1) because these cooperatives, operating under the Rural Electrification Act (7 U.S.C.A. Sec. 901 et seq.) were not in existence as such in 1936, and, hence, were not intended to be public utilities as defined by Act 254 of 1936; (2) because Act 266 of 1940 (now R.S. 12:301-12:330), under which the electric cooperatives are created specifically excepts, in R. S. 12:326, cooperatives transacting business in the State from the jurisdiction and control of the Public Service Commission and (3) because Sections 1 and 2 of Act 254 of 1936 (R.S. 45:122 and 45:123) make it clear that the Legislature was referring only to public utilities regulated by the Public Service Commission in its definition set forth in R.S. 45:121.”

I did not subscribe to the quoted language of the decision, since I was of the opinion that the issue of whether or not the cooperative was an electric public utility was not the issue to be decided by that case, and, moreover, it was my opinion that there were insufficient facts in the record upon which, a proper decision could be based. Reasons' were assigned for my dissent.

I find the same situation exists in the case at bar. No evidence has been introduced upon the issue of whether or not the Cooperative is a public utility, the trial court, judge simply stating that he felt the Public-Service Commission had no jurisdiction over the Cooperative because this case was-governed by our decision in Louisiana Power and Light Company v. Louisiana Public Service Commission, supra. In fine, there is inadequate evidence in the record of either case which would' support a finding that the cooperatives involved are, or are-not, public utilities. The majority, however, seems determined to adjudicate this issue and the error of the results it reaches must be pointed out on the record which does exist. The issue must be resolved in large measure from the law.

In 1921 Article VI, Section 4 of the Constitution was enacted providing that, “The Commission shall have and exercise all necessary power and authority to supervise, govern, regulate and control all * * * electric light, heat and power * * * and other public utilities in the State of Louisiana and to fix reasonable and just single and joint line rates, fares, tolls or charges for the commodities furnished, or services rendered by such common carriers or public, utilities.”

*552Subsequently in 1936, the Legislature enacted Act 254, now incorporated in the Revised Statutes under Title 45 “Public Utilities and Carriers”, Chapter 3 thereof entitled “Electricity”, the pertinent parts of which are as follows:

“Electric public utility defined.
“The term ‘electric public utility’ as used in this Chapter means any person furnishing electric service, within this state, the parish of Orleans excepted.” La.R.S. 45:121.
“Serving customers of another public utility; certificate required; grounds
“In order to encourage a further development of coordinated statewide electrification based upon a planned economy, an electric public utility shall not render or extend its electric services or facilities to customers already receiving electric service from another electric public utility without first obtaining a certificate of public convenience and necessity from the Louisiana Public Service Commission. The Commission shall grant such a certificate only in the event that the electric service already being rendered is inadequate, or that the rates for such electric service are unreasonable.” La.R.S. 45 :- 123.

The record in this case discloses the Cooperative was serving 12,000 customers, not all of whom were members of the Cooperative. The Commission found, moreover, that membership in the Cooperative was irrelevant, “since membership in the cooperative could scarcely be termed exclusive.”

It would appear that Section 4 of Article VI of the Constitution and Title 45, Section 121, of the Revised Statutes, which I have quoted, in the absence of other factual findings bearing upon the issue or other positive law, would make the position of the Cooperative in this litigation entirely untenable. That is to say, the quoted constitutional and legislative pronouncements would appear too plain and unequivocal to merit any argument on the question of whether the Cooperative at bar is a public utility and whether, as such, it is subject to regulation.

Plowever, a subsequent enactment by the Legislature, Act 266 of 1940 (La.R.S. 12:326), is relied upon to alter what are otherwise clear constitutional and legislative expressions. That act provides:

“Cooperatives transacting business in this state pursuant to this Part (the legislation providing for the organization and powers of electric cooperatives) shall be exempt in all respects from the jurisdiction and control of the Public Service Commission of this state.” (Parentheses added.)

This latter enactment, however, is without any effect for it is, in plain terms, contrary to the Constitution which provides that “The Commission shall have and exercise all necessary power and authority to su*554pervise, govern, regulate and control * * electric light, heat and power * * * .and other public utilities * * La. Const, art. 6 § 4 (1921). This constitutional provision is mandatory; its terms are plain And unambiguous; it is the paramount law of the state and it cannot be modified, superseded or amended by a legislative enactment.

On the contrary, instead of altering the meaning of the Constitution, if La.R.S. 12:326 providing that Cooperatives are exempt from Commission regulation is to have Any effect in this litigation, it must be considered as a recognition by the Legislature in 1940 that electric cooperatives came within the ambit of the Commission’s jurisdiction under Section 4 of Article VI of the Constitution of 1921, quoted above, otherwise it would not have been necessary to attempt to free them from Commission regulation. The attempt, however, must be considered futile for the obviously fundamental reason that a legislative enactment cannot supersede the constitution.

In this connection, it may be noted that the majority in Louisiana Power and Light Company v. Louisiana Public Service Commission, 250 La. 596, 197 So.2d 638 (1967)— the opinion relied upon in the case at bar to support the conclusion that the Cooperative is not a public utility — sets forth that, since electric cooperatives operating under the Rural Electrification Act (7 U.S.C.A.Sec. '901 et seq.) were not in existence as such in 1936, cooperatives were not intended to be included within the definition of public utilities as defined by Act 254 of 1936 (now La. R.S. 45:121 which declares the term “electric public utility” means “any person” furnishing electric service). This conclusion is arrived at by the majority upon the theory that for the language of La.R.S. 45:123 to be applicable, “it is essential that the electric services or facilities extended by an electric public utility be given to customers already receiving electric service from another electric public utility.” The error of this conclusion is apparent. Under the reasoning of the majority, unless a public utility was in existence at the time of the statute’s enactment (1936) it could not be regulated under the provisions of La.R.S. 45:123. No such interpretation is warranted from the language of the statute and the Constitution (Article VI, Section 4) ordains no such restriction upon the regulatory powers of the Commission.

In broad terms the Constitution confers on the Commission jurisdiction over electric public utilities without regard to the manner in which the utility is organized. For instance, the electric public utility may be a business corporation, a partnership, an individual business, an association or a cooperative similar to the cooperative involved in the instant case, and the electric public utility nevertheless comes within the jurisdiction granted to the Commission by the Constitution. It is not the organizational struc*556ture of a business which makes It a public utility, and the Constitution makes no effort to confine the provisions of Section 4 of Article VI to any particular type of business conducting an electric public utility. Rather, its terms are broad and all inclusive in that respect. The Constitution is concerned with the commodity or service dealt with, and those which the drafters determined were charged with a public interest they called public utilities. In addition, however, the Legislature defined an electric public utility as "any person furnishing electric service,” thereby adding emphasis to what was already abundantly clear. See La.R.S. 45:121.

The only authority cited by the majority to sustain its position in Louisiana Power & Light Company v. Louisiana Public Service Commission, 250 La. 596, 197 So.2d 638 (1967) are the cases of Black River Electric Co-op., Inc. v. Public Service Com’n, 238 S.C. 282, 120 S.E.2d 6 (1961); Clearwater Power Company v. Washington Water Power Co., 78 Idaho 150, 299 P.2d 484 (1956); Socorro Electric Cooperative, Inc. v. Public Service Commission, 66 N.M. 343, 348 P.2d 88 (1959) and San Miguel Power Ass’n. v. Public Service Company, 4 Utah 2d 252, 292 P.2d 511 (1956).

In the Black River Electric Cooperative Case the court was concerned with the jurisdiction of the Public Service Commission in South Carolina over a customer dispute between a cooperative electric utility and an investor owned electric utility. The Legislature in South Carolina had enacted a statute providing that electric cooperatives should be exempt from regulation by the Commission — just as the Legislature has in Louisiana. But the significant and all important distinction between the Black River Case and the case at bar is that South Carolina had no constitutional provision making regulation of electric public utilities mandatory and its legislative enactment exempting cooperatives from Commission regulation could stand; whereas, In Louisiana the act exempting electric cooperatives from Commission regulation cannot stand because it is contrary to Article VI, Section 4, of the Constitution requiring the regulation of electric public utilities and to La.R.S. 45:121 clearly defining electric public utilities to be “any person” furnishing electric service.

The other cases relied upon by the majority are to the same effect as the Black River Case and were cited in the Black River Case to sustain its holding. All of those cases turned upon legislative enactments which exempted cooperatives from regulation by the Commission — none involved a conflict between constitutional and legislative enactments which is the case at bar.

Many jurisdictions hold that as a matter of fact cooperatives are public utilities. It is the prevailing view supported both by the realities of the proposition and a common sense of justice. I cited these cases in my previous dissent on this issue, and I refer to *558them again for emphasis. See 197 So.2d 647.

The Cooperative at bar, furthermore, has the usual attributes of a public utility. It serves a significant segment of the public— 12,000 users. Membership, according to the finding of the Commission, is “scarcely exclusive” and the inference follows that the cooperative serves both members and nonmembers. The law has given it the power of eminent domain and it is eligible to receive franchises which permit it to place its lines in public rights of way. These are all factors, in addition to the constitutional and legislative definitions, which establish the public utility nature of this electric cooperative factually and legally.

Upon the basis of the Constitution, La.R. S. 45:121 and the scanty evidence in this record, it is evident both from the legal and factual point of view that the cooperative in this case is an electric public utility. It is likewise evident that the majority opinion is contrary to the express mandate of the Constitution requiring the regulation of electric public utilities by the Commission.

The result the majority reaches must inevitably bring about competitive chaos in the industry, destroying investments and raising the cost of electricity to the consumer, a result the Constitution seeks to avoid.

On the merits, I would sustain the first order of the Commission which found that the Cooperative was “taking” the customers of Central Louisiana Electric Company, Inc., contrary to La.R.S. 45:123.

I respectfully dissent.

SUMMERS, J. dissents from the refusal of a rehearing.