Central Louisiana Elec. Co. v. Louisiana Public Service Commission

• Decision Date: 20 January 1969
• Docket Number: Nos. 49374 and 49375,s. 49374 and 49375
• Citation: 218 So.2d 592,253 La. 553
• Court: Louisiana Supreme Court
• Parties: , 78 P.U.R.3d 209 CENTRAL LOUISIANA ELECTRIC COMPANY et al. v. LOUISIANA PUBLIC SERVICE COMMISSION et al. CENTRAL LOUISIANA ELECTRIC COMPANY Gulf States Utilities Company, LouisianaPower & Light Company, and Southwestern Electric Power Company v. LOUISIANA PUBLIC SERVICE COMMISSION.

Page 592

218 So.2d 592

253 La. 553, 78 P.U.R.3d 209

CENTRAL LOUISIANA ELECTRIC COMPANY et al. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.

CENTRAL LOUISIANA ELECTRIC COMPANY Gulf States Utilities

Company, LouisianaPower & Light Company, and Southwestern Electric Power Company v. LOUISIANA PUBLIC SERVICE COMMISSION.

Nos. 49374 and 49375.

Supreme Court of Louisiana.

Jan. 20, 1969.

Rehearing Denied Feb. 24, 1969.

Landry, Watkins, Cousin & Bonin, Jacob S. Landry, New Iberia, Taylor, Porter, Brooks, Fuller & Phillips, Tom F. Phillips, Baton Rouge, Theus, Grisham, Davis, Leigh & Brown, Thomas W. Leigh, Monroe, Monroe & Lemann, Andrew P. Carter, Eugene G. Taggart, New Orleans, Wilkinson, Woods, Carmody, Neadows & Hall, Arthur R. Carmody, Jr., Shreveport, for plaintiffs and appellants.

Paul M. Hebert, Theo. F. Cangelosi, John Schwab, Robert L. Cangelosi, Baton Rouge, for intervenor-appellee.

Joseph H. Kavanaugh, Baton Rouge, for defendant-appellee.

BARHAM, Justice.

This is an appeal from a judgment rendered by the Nineteenth Judicial District Court for the Parish of East Baton Rouge affirming orders of dismissal by the Louisiana Public Service Commission of proceedings before it, and sustaining exceptions of no cause of action in a suit filed in that court.

In 1964 four private utility companies doing business in Louisiana filed a petition with the Louisiana Public Service Commission against Louisiana Electric Cooperative, Inc., seeking to enjoin the cooperative from the construction of an electric generating and transmission system or to require it to secure a certificate of public convenience and necessity for that construction. The plaintiffs alleged that the defendant was an electric cooperative organized under LSA-R.S. 12:301 et seq., with 12 electric distribution cooperatives as members; that the Rural Electrification Administration had approved a loan to the defendant cooperative of $56,521,000.00 for construction of a generating and transmission system to serve the wholesale electric power requirements of its member cooperatives, and that the member cooperatives at that time were purchasing their electric power from the plaintiff power companies at wholesale for resale to their members and their order customers. The cooperative filed an exception of no right or cause of action and exceptions to the Public Service Commission's jurisdiction over it and over the subject matter of the proceedings.

Early in 1965 the Public Service Commission dismissed plaintiffs' petition, holding that the member cooperatives were not 'customers' of the complaining power companies within the meaning of LSA-R.S. 45:123. On appeal the Nineteenth Judicial District Court reversed the commission's order and remanded the case for a hearing on the merits. During sporadic hearings on the merits, two pertinent decisions were rendered by the Louisiana Supreme Court: Louisiana Power & Light Co. v. Louisiana Public Service Com'n, 250 La. 596, 197 So.2d 638 (1967), and Central Louisiana Electric Co. v. Louisiana Public Service Com'n, 251 La. 532, 205 So.2d 389 (1968). On the basis of those cases and for other reasons, the Public Service Commission then sustained the cooperative's exceptions and dismissed the petition pending before it. A second appeal was taken to the district court, and a new and separate but identical suit filed in that court was consolidated with the appeal for hearing. The district court affirmed the Public Service Commission's order sustaining the exceptions to the commission's jurisdiction, and sustained the exceptions of no cause of action filed in the suit before it.

Although various contentions are made before this court, the resolution of one issue will determine the matter. The cooperative is, as stated in the plaintiffs' petition, an electric cooperative organized under the Louisiana Electric Cooperative Act, LSA-R.S. 12:301 et seq., and the crucial issue is whether the Louisiana Public Service Commission has jurisdiction over such an electric cooperative.

The district court relied on the decisions in Louisiana Power & Light Co. and Central Louisiana Electric Co., supra, to arrive at its conclusion, saying in part: 'We hold that insofar as statutory law is concerned, we can make no valid distinction between Louisiana Electric Cooperative, Inc. and those distribution cooperatives which the Supreme Court of Louisiana has ruled are not subject to the jurisdiction of the Louisiana Public Service Commission. * * *'

In argument before us the plaintiffs admitted that they cannot prevail in this case unless we overrule the Central Louisiana Electric Co. case and repudiate the language, if not overrule the holding, in the Louisiana Power & Light Co. case.

The Louisiana Power & Light Co. case was decided in March, 1967, with Mr. Justice McCaleb as the organ of the whole court. A rehearing was refused in May, but three justices dissented from the denial of a rehearing. Mr. Justice Hamiter, one of those three dissenters, was the author of the majority opinion in the Central Louisiana Electric Co. case, decided in December, 1967, which reaffirmed the reasoning of Louisiana Power & Light Co., supra. Mr. Justice Summers was the only dissenter. A rehearing in that case was denied in January, 1968. Thus within less than one year this court acted twice upon the same question presented here, and the exact issue was met squarely by this court in the Central Louisiana Electric Co. case only months before submission of the present case.

Although some of the language in the Louisiana Power & Light Co. case any have been dictum, this court said of that decision in the Central Louisiana Electric Co. case: 'On this appeal by Central from the district court's judgment it asks that we reconsider and overrule our decision in the Louisiana Power and Light Company case, supra, wherein we held (among other things) that the provisions of LRS 45:123, which require an electric public utility to obtain a certificate of public convenience and necessity from the Commission before serving customers already receiving service from another electric public utility, do not apply to electric cooperatives. But our further consideration of that case convinces us that the decision therein was correct and is amply supported by the reasons set out in the opinion. In fact, those reasons are well articulated and documented; and we reaffirm them.' (Emphasis supplied.)

Finally this court concluded in the Gentral Louisiana Electric Co. case: 'Therefore, our conclusion is that electric cooperatives, assuming arguendo that they are 'public utilities' of some sort and as such might be placed by the Legislature either partially or wholly under the authority of the Commission, are not 'electric public utilities' or 'other utilities' envisioned by the language and within the intendment of Article VI, Section 4 of the Louisiana Constitution; and that, Inasmuch as the Legislature has not exercised its prerogative to give the Commission control of them, the latter is without jurisdiction over their operations.' (Emphasis supplied.)

The plaintiffs have made strong and articulate argument to support their theory that these holdings should be overruled, and Mr. Justice Summers in his dissents in the prior cases has well stated their position. Nevertheless, in the face of two strong and recent decisions by this court within a brief period of time, and particularly in view of the pronouncement that the matter was for legislative attention, to speak now in a contrary vein would weaken the stability of the law and could properly subject this court to the criticism of usurping the functions of the legislative and executive arms of government. ¹ Our present statutory law and jurisprudential pronouncements make it clear that electric cooperatives are not subject to the jurisdiction of the Louisiana Public Service Commission. ²

On the basis of the holdings in Louisiana Power & Light Co. v. Louisiana Public Service Com'n, supra, and Central Louisiana Electric Co. v. Louisiana Public Service Com'n, supra, the judgment of the district court affirming the dismissal of the power companies' petition before the Louisiana Public Service Commission and dismissing the proceedings in that court is affirmed. Plaintiffs are cast for all costs in these proceedings.

HAMLIN, Justice (dissenting).

It is my studied conclusion that the district court erred when it affirmed the Louisiana Public Service Commission's order sustaining exceptions to the Commission's jurisdiction and exceptions of no cause of action filed by the defendant electric cooperative. I respectfully dissent from the findings of the majority opinion of this Court and from the majority decree which affirmed the judgment of the district court.

I earnestly believe that due process can only be accomplished herein by the Hearing of evidence to determine the correctness vel non of the plaintiffs' petition. They allege that the defendant cooperative is in truth and in fact a public utility which should be regulated by the Louisiana Public Service Commission. Art. VI, Sec. 4, La.Const. of 1921; cf. LSA-R.S. 45:121. They allege in substance that LSA-R.S. 12:326 does not apply to the defendant electric cooperative.

It is a fact that neither the Commission nor the district court ever reached any consideration of the merits, i.e., whether or not under the facts jurisdiction over this cooperative is vested in the Commission. The point raised is that if, after the hearing of evidence, a finding is made that the defendant cooperative is in truth and in fact a public utility, the Commission would then have jurisdiction. This contention, in my opinion, must be answered.

In brief filed in this Court on October 14, 1968, counsel for plaintiffs give cogent reasons for the overruling of the above exceptions and the remanding of the matter to the district court and ultimately to the Commission for the hearing of evidence. They...