Oklahoma Gas & Elec. Co. v. Corporation Commission, 47861

• Decision Date: 04 February 1975
• Docket Number: No. 47861,47861
• Citation: 543 P.2d 546,1975 OK 15
• Parties: OKLAHOMA GAS & ELECTRIC COMPANY, a corporation, Petitioner, v. CORPORATION COMMISSION of the State of Oklahoma et al., Respondents.
• Court: Oklahoma Supreme Court

Page 546

543 P.2d 546

OKLAHOMA GAS & ELECTRIC COMPANY, a corporation, Petitioner, v. CORPORATION COMMISSION of the State of Oklahoma et al., Respondents.

No. 47861.

Supreme Court of Oklahoma.

Feb. 4, 1975.

Rainey, Welch, Wallace, Ross & Cooper by Hugh D. Rice, H. Duane Stratton, Oklahoma Gas & Electric Co., Oklahoma City, for petitioner.

Roy E. Grantham, Grantham, Casey & Kirkpatrick, Ponca City, Robert M. Murphy, Berry, Murphy & Osborn, Stillwater by W. D. Greenshields, Ponca City, for respondents, Watchorn Basin Association and others.

IRWIN, Justice:

Petitioner (O G & E) proposes to construct a new electric generating station and an off-stream cooling reservoir on lands located in Noble and Pawnee Counties, Oklahoma. It has acquired part of the land necessary for this project and proposes to acquire the remaining land either by purchase or eminent domain proceedings. This proposed project is more fully explained in Watchorn Basin Association v. Oklahoma Gas and Electric Company (1974), Okl., 525 P.2d 1357.

The fundamental issue in this original proceeding is whether the Oklahoma Corporation Commission has the power and authority to prohibit the construction of the proposed project.

Respondents, other than the Oklahoma Corporation Commission, will be referred to as Landowners.

Landowners filed an application with the Corporation Commission and alleged, inter alia, that (1) O G 3 E's proposed project is not necessary for it to sufficiently supply electric power to its customers; and (2) O G & E is not making the best use of its existing generating plants. Landowners requested the Corporation Commission to conduct a hearing, and thereafter issue its order directing O G & E to abandon its proposed project.

O G & E filed its objection to jurisdiction and motion to dismiss alleging that the Corporation Commission had no jurisdiction to adjudicate the issues raised in Landowners' application.

The Corporation Commission sustained in part and overruled in part O G & E's objection to jurisdiction and motion to dismiss and retained jurisdiction concerning the two allegations in Landowners' application above set forth.

O G & E filed this original proceeding and requests this Court to assume original jurisdiction and issue a writ prohibiting the Corporation Commission from further proceeding in the cause.

In Merritt v. Corporation Commission (1968), Okl., 438 P.2d 495, we held:

'The Corporation Commission is a tribunal of limited jurisdiction and has only such jurisdiction and authority as is expressly or by necessary implication conferred upon it by the Constitution and statutes of this state.'

Article VII, § 4, of the Constitution grants this Court superintending control over all inferior courts, and all agencies, commissions and boards created by law. Article IX, § 20, of the Constitution provides that 'writs of mandamus or prohibition shall lie from the Supreme Court to the Corporation Commission in all cases where such writs respectively would lie to any inferior court or officer.'

In Atchison, T. & S.F. Ry. Co. v. Corporation Commission (1918), 68 Okl. 1, 170 P. 1156, we said that where the Corporation Commission makes an order in excess of its jurisdiction the writ of prohibition is the proper remedy to restrain its enforcement. In Simpkins v. Corporation Commission, 180 Okl. 108, 67 P.2d 961, we held that where the Corporation Commission issues an order but such order is void because of lack of authority, a subsequent order having for its purpose enforcement of the prior void order likewise is void and unenforceable. In Public Service Corporation v. Corporation Commission (1970), Okl., 475 P.2d 157, this Court prohibited the Corporation Commission from assuming jurisdiction to enforce the provisions of the Extension of Electric Service Act of 1961 (17 O.S.1961, § 158.1 et seq.). In American Bank of Oklahoma v. Adams (1973), Okl., 514 P.2d 1191, we said that prohibition is the appropriate remedy to prevent an inferior judicial tribunal from exercising jurisdiction which it does not possess.

The above authorities support this rule: If the Corporation Commission assumes jurisdiction to adjudicate a cause where one litigant seeks a prohibitory order against another, and any prohibitory order issued by the Commission would be unenforceable because such order would be in excess of its jurisdiction, prohibition is the proper remedy to restrain the Commission from further proceeding in the cause.

Landowners are seeking an order directing O G & E to abandon its proposed project which has the effect of prohibiting O G & E from constructing such project. The Corporation Commission has assumed jurisdiction for the purpose of taking evidence and adjudicating the issues presented in Landowners' application which are: Is O G & E making the best use of its existing generating plants; and is the proposed project essential or necessary for it to sufficiently supply electric power to its customers?

If the Corporation Commission should resolve the above issues against O G & E and order it to abandon its proposed project, and such order would be unenforceable because in excess of the Commission's jurisdiction, O G & E is entitled to a writ prohibiting the Commission from further proceeding in Cause No. 25203, now pending before it.

O G & E first contends that the proposed hearing by the Corporation Commission to determine the necessity of O G & E's proposed project is in the nature of a hearing for a certificate of convenience and necessity and consequently not within the express or implied jurisdiction of the Corporation Commission.

O G & E argues that the Legislature has neither enacted legislation requiring prior approval by the Commission for the construction of a generating plant, nor enacted legislation requiring the granting of a license, permit or a certificate of public convenience and necessity by the Commission as a condition precedent to a public utility constructing power facilities. O G & E then states that it is significant to note that the Legislature has deemed it necessary for certain public utilities to acquire certification of public convenience and necessity to construct certain facilities. As examples of this legislation, O G & E cites 17 O.S.1971, § 43, which provides that no new gin plants shall be constructed, installed, or licensed, or any old gin removed from one point to another until a satisfactory showing shall have been made to the Commission setting forth that such gin is a needed utility. 17 O.S.1971, § 131, requiring a certificate of necessity from the Corporation Commission 'to construct, build or equip any public telephone, toll or long distance lines or any public telephone exchange * * *', with certain exceptions therein prescribed. 17 O.S.1971, § 159.12, requires a certificate of necessity 'to construct, build or equip any water transportation line to serve the public as a common carrier of water'. 17 O.S.1971, § 202, provides that every 'radio common carrier' shall be required to obtain a certificate of necessity to begin or continue the construction or operation of any such radio common carrier system.

The effect of the above statutes is that certain facilities shall not be constructed or extended, or operations conducted, unless there exists a public necessity or the public convenience requiring such construction or operation. The Corporation Commission was granted the authority to determine the issues of public convenience and necessity and to issue the certificates of authority.

Landowners have cited no specific statutory provisions similar to those above set forth, that require a public utility, such as O G & E, to obtain a certificate of necessity or authority from the Corporation Commission as a condition precedent for the construction of a generating plant or power facilities. Landowners rely on general statutes only and the primary statute relied upon is 17 O.S.1971, § 152, which, inter alia, provides:

'The Commission shall have general supervision over all public utilities, with power to fix and establish rates and to prescribe rules, requirements and regulations, affecting their services, Operation, and the management and conduct of their business; shall inquire into the management of the business thereof, and the method in which same is conducted. * * *.' (emphasis supplied)

Landowners contend that since the above statute grants the Corporation Commission general supervision over the operation, management and conduct of the business of all public utilities, the Commission has the authority to determine whether O G & E should construct the project, and if it finds it should not, it may prohibit its construction.

In Public Service Company, supra, (475 P.2d 157), we said:

'17 O.S.1961, Sec. 152, enacted in 1913, gives the Corporation Commission general supervision over all public utilities and enumerates some of its powers. 17 O.S.1961, Section 153, also enacted in 1913, provides that in addition to the powers enumerated in that act (17 O.S.1961, Secs. 151 to 155, inclusive) the 'Commission shall have all additional implied and incidental powers which may be proper and necessary to carry out, perform and execute all powers herein enumerated, specified, mentioned, or indicated, * * *.'

'We find nothing in the 1913 Act (Sections 151 to 155, supra) which requires a supplier of electric service to obtain a certificate of necessity and convenience or other form of franchise from the Corporation Commission before it can extend an electric service line into a rural area, and it is not so contended. * * *.'

If § 152, supra, does not require a supplier of electric service to obtain a certificate of necessity and convenience or other form of approval from the Corporation Commission before it can extend an electric service line into a rural area, which in effect constitutes the construction of new facilities, said section does not require authorization from the...