Capital Elec. Power Ass'n v. Mississippi Power & Light Co., 41606

• Decision Date: 09 January 1961
• Docket Number: No. 41606,41606
• Parties: , 37 P.U.R.3d 246 CAPITAL ELECTRIC POWER ASSOCIATION v. MISSISSIPPI POWER AND LIGHT COMPANY.
• Court: Mississippi Supreme Court

Page 739

125 So.2d 739

240 Miss. 139, 37 P.U.R.3d 246

CAPITAL ELECTRIC POWER ASSOCIATION v. MISSISSIPPI POWER AND LIGHT COMPANY.

No. 41606.

Supreme Court of Mississippi.

Jan. 9, 1961.

Wm. Harold Cox, Hedgepeth, Ewing, Price & Hedgepeth, Jackson, for appellant.

Byrd, Wise & Smith, Jackson, for appellee.

ARRINGTON, Justice.

This litigation involves a dispute between Capital Electric Power Association and the Mississippi Power & Light Company, two corporate electric utilities, as to which is entitled to serve the Elton Company, a corporation of this State which operates a wood-chipping plant at Elton Station on the Illinois Central Railroad about three miles south of the City of Jackson. After the execution of a contract between the Elton Company and the Mississippi Power & Light Company, the Power Company filed with the Mississippi Public Service Commission its petition for a certificate of public convenience and necessity to construct the lines and install the additional equipment in order that it might render electric service from its existing lines to the named plant. Capital Electric Power Association opposed and contested the grant of such certificate. During the pendency of the cause, the Commission permitted the Mississippi Power & Light Company to make a temporary installation to the plant without prejudice to the rights of the parties. At the conclusion of the hearing, the certificate as prayed for was granted. Capital Electric appealed to the Chancery Court of Hinds County where a final decree was entered affirming the order of the Commission. From that judgment, Capital Electric has appealed to this Court.

It is undisputed that the Mississippi Power & Light Company, following the passage of Chapter 372, Laws of 1956, on August 8, 1956, applied to the Mississippi Public Service Commission under Section 5(b) of the Act for a certificate of public convenience and necessity, and that its service area map expressly excluded the Elton area. It is also undisputed that the application and service area map of Capital Electric Filed under the same authority, supra, completely surrounds and embraces the Elton area; that the closest permanent line of Mississippi Power & Light Company is .35 miles distant to the Elton plant, while Capital Electric has a line within 18 feet of this plant; and that its lines have served in this area for the past 17 years.

The Commission chose to go into lengthy and protracted hearings, after which in its final order it recited: 'And it further appearing to the Commission that the evidence shows that the Mississippi Power & Light Company is ready, able and willing to serve the Elton Company with all of its electric requirements and that the protestant Capital Electric Power Association does not have and is not in position to construct adequate facilities to efficiently serve the Elton Company and that it would be in the public interest to grant a permanent certificate of convenience and necessity to the Mississippi Power & Light Company to construct and to operate the facilities as prayed for in the petition and which are necessary to efficiently serve the said Elton Company and that it would not be in the public interest to authorize the Capital Electric Power Association to construct or extend its lines due to the excessive cost thereof and the impairment of efficiency to other customers and the aforementioned inadequacy of protestant's facilities.'

The Commission approved the contract for the service as made by the Mississippi Power & Light Company with the Elton Company.

The record discloses that the Mississippi Power & Light Company introduced evidence to the following effect: The power to serve this plant will come from a common source, Mississippi Power & Light Company's South Jackson substation, and it is 4.3 miles closer to such source; its distribution lines are heavier; its lines have less exposure and its regulation is better; it is closer by about five miles with three-phase power needed in this operation; this shorter distance assures cheaper operation by several thousand dollars and will avoid duplication; its facilities are adequate, whereas Capital Electric facilities are inadequate; it can serve this plant without adversely affecting its present or prospective customers, whereas service by Capital Electric would result in serious impairment of service to its present customers. Further, Capital Electric is not experienced in handling industrial loads such as this and was not designed or established for that purpose.

Besides, the evidence shows that the Elton Company, engaged in manufacturing, expressed its preference for service from Mississippi Power & Light Company as the result of sound advice from a competent electrical engineer, and as the result of an unsatisfactory experience with Capital by its president who concluded that such a rural line would be incapable of serving the plant.

On the contrary, the evidence of Capital Electric was to the effect that it purchases electric energy from Mississippi Power & Light Company; the source of energy is about 17 miles from the Elton plant; its system is three-phase for a distance of 10 miles to Jackson Rendering Company, which it serves, and from that point it furnishes two-phase service over a distance of about 6 miles to the Blaine residence, which is only 1.2 miles from Elton; it has done considerable rephasing of its system in this area since the DeWar survey, several years ago; it would be unwise and uneconomical to rephase and heavy-up the system before a need therefor was reasonably apparent; the total cost of serving every requirement of the Elton plant would not be in excess of $3,476, and that they would render the service ten percent cheaper than Mississippi Power & Light Company; its balance sheet of December 31, 1956, showed equity capital in the amount of $1,182,511.47, and that it is in a stronger financial position than Mississippi Power & Light Company.

Capital Electric assured the Commission that it was ready, willing and able to furnish all service needed and required and its recognized experts testified that it had the ability and capacity to do so in every way. To that end, it sought the opportunity to demonstrate its ability to do so. Its request was refused. The engineers and employees of the Mississippi Power & Light Company disputed Capital's ability.

At the threshold of this case, we are faced with the construction of several provisions of Chapter 372, Laws of 1956, Section 7716-04 et seq. Mississippi Code of 1942. Section 7716-05 thereof is in part as follows: 'Certificate of public convenience and necessity; when required.--No person shall construct, acquire, extend or operate equipment for manufacture, mixing, generating, transmitting or distributing natural or manufactured gas, or mixed gas, or electricity, or water, for any intrastate sale, to or for the public for compensation, or for the operation of a public utility operating a business and equipment or facilities as contemplated by subsection D(3) of Section 1, of this act, without first having obtained from the commission a certificate that the present or future public convenience and necessity require or will require the operation of such equipment or facility * * *.'

Paragraph (b) of that Section provides as follows: 'The commission shall issue a certificate of convenience and necessity to any person engaged in the construction or operation of such equipment or facility on the effective date of this act, for the construction or operation then being conducted, without requiring proof that public convenience and necessity will be served by such construction or operation, and without further proceedings, if application for such certificate is made to the commission within six (6) months after the effective date of this act; and pending the filing of any such application and the issuance of a certificate, the continuance of such construction or operation shall be lawful. Any utility covered by this act which has heretofore been under the jurisdiction of the Mississippi Public Service Commission shall, upon application within six (6) months of the effective date of this act, be...