Lewis v. Jackson Energy Cooperative Corp.

Dissenting opinion by Justice ROACH.

The interpretation of KRS 279.020 is a difficult matter. The statute is not particularly well drafted. I believe the majority has made a reasonable interpretation of the law and, were it not for the 1974 amendments to the statute, I would likely join their opinion. Prior to 1974, KRS 279.020 read as follows:

Any five or more natural persons a majority of whom are citizens of Kentucky, may, by executing, filing and recording articles of incorporation as provided in KRS 279.080 and KRS 279.040, form a nonprofit cooperative corporation for either of the following purposes:
(1) To promote and encourage the fullest possible use of electric energy in this state by making electric energy available by production, transmission, distribution or otherwise to persons in rural areas of the state at the lowest cost consistent with sound business methods and prudent management, and by making available to such person, at the lowest cost consistent with sound business methods and prudent management, electric devices, equipment, wiring, appliances, fixtures and supplies, and all kinds of tools, equipment and machinery operated by electric energy.
(2) To promote and encourage the fullest possible use of electric energy in this state by making electric energy available to persons in rural areas of the state at the lowest cost consistent with sound business methods and prudent management by producing, transmitting, distributing or furnishing electric energy to any corporation formed under this chapter for the purposes provided by subsection (1) of this section and only to such corporation, and by making available to such corporations and only to such corporations, electrical devices, equipment, wiring, appliances, fixtures and supplies, and all kinds of tools, equipment and machinery operated by electric energy, and accounting services, forms and supplies, bargaining services, business counsel and advice, engineering services, supervisory services, investment counsel, general purchasing services of all kinds, and any other services that are requested or deemed advisable or desirable in the conduct of its business by any corporation formed under this chapter for the purposes stated in subsection (1) of this section. Any corporation organized under this chapter may be organized to do any or all of the acts set forth in this subsection.

However, KRS 279.020 was amended significantly in 1974. It currently states:

Any three (3) or more individuals, partnerships, associations or private corporations a majority of whom are citizens of Kentucky, may organize to conduct an electric generation, transmission, distribution or service nonprofit cooperative *97corporation to produce, transmit, distribute or furnish energy to any person or corporation and/or to provide electrical devices, wiring and equipment and any services that are requested or deemed advisable or desirable to operate a utility) by executing, filing and recording articles of incorporation as provided in KRS 279.030 and 279.040.

I agree with the Court of Appeals when they characterized the 1974 amendment in the following manner:

Prior to 1974, KRS 279.020 did limit rural electric cooperatives to furnishing only electric energy and limited the purpose of these cooperatives to the promotion and encouragement of electric energy usage in Kentucky by making electric energy widely available. Also, until 1974, rural electric cooperatives were permitted to provide requested services only if such services involved the use of electric energy. In 1974, however, the legislature amended the statute to its current version .... By amending the statute to remove the word “electric” before the word “energy,” and by deleting the statutory statements of purpose found in the subsections, the 1974 General Assembly ap-’ peared to promote the diversification of rural electric cooperatives and apparently wanted these organizations to have the opportunity to provide other forms of energy that [were] deemed beneficial to the citizens of their service areas. It must be presumed that by amending the statute to its present form, the legislature acted intentionally to accomplish some purpose. Blackburn v. Maxwell Co., Ky., 305 S.W.2d 112, 115 (1957).
If the legislature had intended to prohibit rural electric cooperatives, from providing nonelectric services to the public, it could have easily done so. Yet, the 1974 General Assembly decided to remove the limitations on rural electric cooperatives and, in effect, encouraged diversification of products and services. Lewis suggests a reading of the statute that would narrow application of the current statute back to its pre-1974 reading. This requires the court to read into the current statute language that was deleted and rejected by the legislature. Lewis’s interpretation of today’s version of KRS 279.020 contravenes the clear intent of the statute and, in effect, would prevent Jackson Energy from venturing into other permissible business ventures. Hence, we believe that the only logical conclusion to be drawn from the 1974 removal of the limiting language from KRS 279.020 was that the legislature intended to allow rural electric cooperatives to produce, transmit, distribute or furnish other forms of energy.

Ct. of App. Op. at 10-11.

I believe that the General Assembly expressed its intent with another significant change to the statute that was also mentioned by the Court of Appeals. The current version states that rural electric cooperatives may provide “any services that are requested or deemed advisable or desirable to operate a utility.” KRS 279.020. This provides, at most, a general limit on the services which may be provided by a rural electric cooperative. The pre-amendment version of the statute, however, limited these services to those “deemed advisable or desirable in the conduct of its business by any corporation formed under this chapter for the purposes stated in subsection (1) of this section.” KRS 279.020(2) (pre-1974 version, emphasis added). Subsection (1) of the statute explained that the purpose of rural electric cooperatives was “[t]o promote and encourage the fullest possible use of electric energy in this state by making electric *98energy by production, transmission, distribution or otherwise to persons -in rural areas .... ” KRS 279.020(1) (pre-1974 version, emphasis added).

It is clear that the pre-1974 version imposed a restriction on services that is significantly more stringent than the current statute. I believe that in altering the limiting language of the last clause, the General Assembly expressed its clear intent to allow rural electric cooperatives to expand into services with the only limitation being that those services be “requested or deemed advisable or desiiable to operate a utility.” I cannot say that the sale of propane falls outside this general limitation.

For these reasons I believe the majority opinion has not properly construed the statute. Therefore, I respectfully dissent.

SCOTT, J., joins this dissenting opinion.