Dissenting Opinion
Achor, C. J.I dissent in this case for the following reasons: The majority opinion initially describes the “Plaintiff-appellee (as) is a corporation engaged exclusively in the production, transmission and sale of electrical energy.” If it is a fact that appellee is engaged in the sale and transmission of electrical energy to Edison (an Illinois corporation), then the receipts from such sale are not subject to tax, and the majority opinion is correct. However, it is upon this basic premise that I am in disagreement with the majority of the court.
In my opinion the appellee and Edison are not engaged in the sale and purchase of electrical energy. Theirs is a distinct and different type of contractual *125relationship by which, with skillful craftsmanship and meticulous care, the contracting parties avoided the vendor-vendee relationship and, with purpose and design, entered into a contract whereby in minute detail Edison engaged appellee’s facilities and contracted to pay all expenses for the production and the delivery of its own electricity. True, the contract provided that the energy accepted by appellee be measured as to kilowatt hours but such measurement was for the purpose of prorating the “actual cost of the coal” consumed in the manufacture of the current delivered to Edison. Payment was not made for the electricity itself. Thus it is my firm conviction that the payment which appellee received was for the production of electricity which was wholly within the State of Indiana. Therefore, there is no legitimate reason why appellee, which enjoys all the services of our state government, should not bear its just share of the cost of such government by paying the tax here imposed.
The problem with which we are here concerned is contractual. At the outset our attention is called to the fact that the transaction between the appellee and Edison has previously been ruled upon by the Federal Power Commission in its order of July 16, 1941, which is hereafter referred to. In that order the Federal Power Commission found that “the electrical energy supplied Edison is generated in Indiana and transmitted to the Illinois-Indiana state line at which point it is delivered and sold to Edison.” However, appellee is quick to admit that this ruling is not binding upon this court but suggests that it should be persuasive of our decision in this case. To what extent is the order of the Federal Power Commission persuasive of the issue in this case? The Federal Power Act in §201 (b) and (c) thereof (Title 16 U. S. C. A., §824 (b) and (c)), provides as follows:
*126“(c) For the purpose of sections 824-824h of this title, electric energy shall be held to be transmitted in interstate commerce if transmitted from a State and consumed at any point outside thereof; 99
Under the broad powers of the foregoing statute the Federal Power Commission had jurisdiction over ap-pellee, regardless of the capacity in which appellee produced the electrical energy since the current was transmitted by appellee into another state for consumption. Under this statute it is not material whether or not there was a sale of the electrical energy so transmitted.
The fact that a transaction may, for regulatory purposes, be under the jurisdiction of a Federal agency does not deprive a state the power to tax that part of such transaction which may be entirely local or occurs entirely within the boundaries of the taxing state. South Carolina Power Company v. South Carolina Tax Commission (1931), 52 F. 2d 515, affirmed 1930, 286 U. S. 525; Albuquerque Broadcasting Co. v. Bureau of Revenue (1955), 59 N. M. 201, 281 P. 2d 654, 350 U. S. 806, 100 L. Ed. (advance), p. 47, No. 217, appeal dismissed for want of a substantial Federal question.
As heretofore stated, the problem with which we are here concerned is contractual and, even though the contract is lengthy, there is no method whereby it can be construed without considering its essential provision and the evidence relative thereto.
The contract entered into by appellee with Commonwealth Edison Company of Illinois and other evidence which has a bearing on the question are, as follows: Appellee is a corporation, organized and existing under the laws of Indiana, and, as such, owns and operates an electrical generating plant located at the extreme northwest corner of the State of Indiana. The western *127boundary line of its property is the boundary line between the states of Indiana and Illinois. Appellee was organized in 1926 for the purpose of generating, transmitting and selling electric energy. At the time it started business operations the stock of appellee was owned by four corporations, Commonwealth Edison Company, Public Service Company of Illinois, both Illinois corporations, Interstate Public Service Company of Indiana, and Northern Indiana Public Service Company, the latter two being Indiana corporations. The contracts provided that the above companies, allocated generating capacity from appellee’s plant, were to pay appellee their respective shares of appellee’s fixed charges based on appellee’s invested capital in plant facilities. Each company’s share was the proportionate part of the total net generating capacity which appellee’s generating company assigned to the production of energy for each of the receiving companies. In addition to the payment of proportionate shares of such fixed charges, each of said companies agreed to pay to the appellee its proportionate part of appellee’s operating expenses. Such operating expenses so apportioned included (1) management and general expenses; (2) operating labor expenses; (3) expenses of operating supplies, excluding fuel; (4) expenses of maintenance and repairs, including labor and materials; (5) reasonable charges on account of employee’s benefits, including proportionate charges for service entities and savings funds, and (6) a fuel charge representing the cost of fuel consumed in the generating operation.
On January 1, 1939 new agreements were made, under which Edison and Northern Indiana Public Service Company, hereinafter referred to as NIPSCO, contracted for the entire generating capacity of appellee’s plant. Edison at that time acquired and now owns 100 per cent of the voting stock of appellee. Other changes *128in the agreements were made July 1, 1939, and the two agreements were made effective as of January 1, 1939.
During this period the Federal Power Commission instituted an investigation into the contracts and operations between appellee and Edison and NIPSCO. As a result of such hearing, the Federal Power Commission issued an order in July, 1941 for appellee to reduce its capital investment base, and to reduce the rate of return on said capital investment base from 11½ to 5½ per cent. Pursuant to the order of the Federal Power Commission, appellee entered into a contract with Edison and NIPSCO, effective as of July 1, 1941. This is the contract now in force and the subject of this litigation. As heretofore stated, the express purpose of this contract was “to readjust the basis under which Edison shall hereafter . . . obtain generating capacity in the State Line Station.” This contract provides that appellee allocate to Edison 252,000 kilowatts of the total net capacity of appellee’s generating facilities which aggregated 342,000 kilowatts. (The other 90,000 kilowatts of the total net capacity was allocated to NIPSO.) With regard to payment for such “generating capacity” this contract provides, among other things, that Edison shall pay to appellee each month — not for electricity sold and transmitted, but the following charges:
1. A general investment charge equal to 1/12 of 5½ per cent of Edison’s proportionate (252/342) part of appellee’s (a) net general investment, and (b) working capital and investment and (c) investment in special facilities (transformers, etc.), which were used exclusively for Edison’s benefit.
2. A general depreciation charge of 3 per cent, (a) based on Edison’s proportionate part of appellee’s investment in special facilities used solely by Edison.
3. Edison’s proportionate share of appellee’s general *129tax charge and the full tax charge of special facilities used exclusively for Edison’s benefit.
4. Edison’s proportionate part, plus the full expense of operating special facilities used exclusively for Edison’s benefit.
5. Edison’s proportionate part of a general fuel charge defined and calculated as follows:
“(a) There shall first be determined for such month the actual cost of fuel burned at State Line Station (appellee). Such actual cost of fuel burned shall include all expenses relating to the fuel required to produce the steam utilized for the production of energy, properly chargeable to fuel in accordance with the classification of account prescribed for Chicago District. It shall also include the net cost of, or there shall be deducted therefrom, the net amount realized from the disposal of ashes.
(b) The actual cost for such month of fuel burned at State Line Station shall be divided by the total number of kilowatthours of net output of State Line Station during such month. The quotient shall be the State Line fuel charge for such month.
(c) Edison’s general fuel charge for such month shall be the net total number of kilowatt-hours supplied by Chicago District (appellee) to Edison in such month from Edison’s allotted and surplus capacity multiplied by such State Line fuel charge for such month.”
6. Revenue tax charges, if any, payable for “gross revenue, sales, or other similar taxes directly applicable to the charges . . . payable under this agreement.”
7. The contract further provided that, in event Edison failed to pay any bill rendered under the agreement within 15 days, appellee had the right to discontinue supplying energy after giving Edison 30 days’ notice, in writing, and the discontinuance of the energy would not discharge Edison from making monthly payments of all the charges provided for in the agreement, just the same as if Edison had received the electrical energy.
*130Under “the terms and conditions of this agreement,” was there a “sale” of electric energy as a product from appellee to Edison? Was there “a transfer of property for a price” or does Edison pay appellee for the generating capacity and other expenses incident to the production of the electric energy which, admittedly, it received from appellee’s plant?
From this contract and the evidence before us, I am of the opinion that, although Edison receives electric energy from appellee, it does not pay for electric energy itself. Rather, it pays for generating capacity within appellee’s plant and for the production of energy by that plant, which production was exclusively within the State of Indiana. Therefore, the sum paid appellee by Edison is subject to tax under §64-2603 (e), Burns’ 1951 Repl. (1955 Supp.).
A more simplified analogy would be presented by a circumstance where A owned a hand generator and B and C contracted with A for A to use and crank the machine and thereby generate current for them, the agreement being that A would allocate the entire generating capacity of his machine equally between B and C, and that each would pay A an equal fixed rental for the use of the machine. That B and C would pay A wages for the energy he expended (comparable to “the actual cost of coal”) in the proportion that they actually received current from him. Under these circumstances, B and C were not buying electric current from A at a price per kilowatt-hour. A was an employee of B and C. They were paying him for generating capacity and the production of electric energy.
A comparable situation existed in the case of Utah Power & Light Co. v. Pfost (1932), 286 U. S. 165, 181, 182. That case involved the levy of a license tax upon the manufacture, generation or production of electricity within the State of Idaho. The Utah Power & Light *131Company owned a hydro-electric plant upon which the license tax was applied. The plant was connected by interstate transmission lines with distribution facilities situated outside the state. Injunction proceedings were instituted to restrain the collection of the tax on the ground that the generation and transmission of energy was a continuous operation in interstate commerce; that the generator was an instrumentality of interstate commerce and that, therefore, the tax was a burden upon that commerce. The court, however, supported the validity of the tax and said, on pages 181 and 182:
“We are satisfied, upon a consideration of the whole case, that the process of generation is as essentially local as though electrical energy were a physical thing; and to that situation we must apply, as controlling, the general rule that commerce does not begin until manufacture is finished, and hence the commerce clause of the Constitution does not prevent the state from exercising exclusive control of the manufacture. . . .
“Without regard to the apparent continuity of the movement, appellant, in effect, is engaged in two activities, not in one only. So far as it produced electrical energy in Idaho, its business is purely intrastate, subject to state taxation and control.”
In my opinion, therefore, the decision of the trial court was contrary to law and should be reversed.