Dixie Elec. Membership Corp. v. Louisiana Public Service Com'n

• Decision Date: 28 November 1983
• Docket Number: No. 83-CA-1197,83-CA-1197
• Citation: 441 So.2d 1212
• Parties: DIXIE ELECTRIC MEMBERSHIP CORPORATION v. LOUISIANA PUBLIC SERVICE COMMISSION.
• Court: Louisiana Supreme Court

Page 1212

441 So.2d 1212

DIXIE ELECTRIC MEMBERSHIP CORPORATION v.LOUISIANA PUBLIC SERVICE COMMISSION.

No. 83-CA-1197.

Supreme Court of Louisiana.

Nov. 28, 1983.

Rehearing Denied Jan. 6, 1984.

John Schwab, Baton Rouge, for plaintiff-appellant.

Marshall B. Brinkley, Baton Rouge, for defendant-appellee.

Eugene R. Groves, Baton Rouge, for intervenor-appellee.

BLANCHE, Justice.

In this companion case to Dixie Electric Membership Corporation v. Louisiana Public Service Commission, 441 So.2d 1208(La.1983), ("Round Oak Subdivision"), decided this day, Dixie Electric Membership Corporation had, at the request of the developer, built an electric distribution line to service Lakeland Acres Subdivision in Livingston Parish, Louisiana.Gulf States Utilities Company filed a complaint with the Louisiana Public Service Commission alleging that Dixie's action was unlawful, requesting that Dixie be ordered to remove their line, and that Gulf States be awarded the exclusive right to service the subdivision.The Commission upheld Gulf State's complaint and awarded Gulf States the right to service Lakeland Acres Subdivision.On the basis of new evidence submitted, the district court remanded the case to the Commission for reconsideration.La.R.S. 45:1194.The Commission affirmed its original order and the district court affirmed the Commission's order.Dixie now appeals to this court.La. Const. art. IV, § 21(E);La.R.S. 45:1192.

Lakeland Acres Subdivision is located approximately 600 feet south of Interstate 12 in Livingston Parish, Louisiana, and approximately 280 feet east of South Range Avenue (La. Hwy. 3002).Gulf States maintains a high voltage transmission line that comes within 300 feet of at least nineteen lots on the south part of the subdivision.Gulf States also maintains a single-phase distribution line along South Range Avenue.This line, at one time, provided single-phase service to an old camp which was located on land which is now designated as Lot 1 of the First Filing of the subdivision.The camp has been removed, electric service has been disconnected, and the line is no longer energized.Dixie maintains a three-phase distribution line along Interstate 12 approximately 600 feet north of the subdivision.Thus, at the time that Dixie entered into an agreement to provide electric distribution service to this subdivision, no other utility had electric distribution service to that area.

On May 11, 1977, Dixie entered into an agreement with the developer of the subdivision whereby Dixie would provide underground electric distribution service to the subdivision.The agreement contained provisions whereby the developer would not be charged for the increased costs of underground, as opposed to overhead, service.

The complaint filed by Gulf States in this matter alleges the same three infractions on the part of Dixie as are contained in the "Round Oak Subdivision" complaint; first, that Dixie violated General Order of March 12, 1974, "In re: Promotional Practices" by offering underground service at no cost above that for overhead service; second, that Dixie's action was in violation of the "300 foot rule" of La.R.S. 45:123; and third, that Dixie violated General Order of March 12, 1974, "Duplication of Electric Service", by providing electric distribution service where Gulf States could do so more economically.Because we find that Gulf States failed to carry its burden of proof before the Commission, we reverse.

The agreement between Dixie and the developer of the subdivision was signed on May 11, 1977.By stipulation of both parties before the Commission, it was Dixie's uniform policy at that time to provide such underground services to all customers, regardless of the existence of any competing utility in the area.As such, the General Rule of March 12, 1974, "In re: Promotional Practices", does not apply to this case and may not be relied upon by either the Commission or Gulf States.See: Dixie Electric Membership Corporation v. Louisiana Public Service Commission, 441 So.2d 1208(La.1983);Louisiana Power and Light Company v. Louisiana Public Service Commission, 392 So.2d 658(La.1980);Central Louisiana Electric Company, Inc. v. Louisiana Public Service Commission, 370 So.2d 497(La.1979).

As in the "Round Oak Subdivision"case, supra, Gulf States may not rely upon La.R.S. 45:123 to contend that they are entitled to service the entire subdivision.This court interpreted the language of La.R.S. 45:123 restrictively in South Louisiana Electric Cooperative Association v. Louisiana Public Service Commission, 309 So.2d 287(La.1975).Therein, we found that the language "point of connection" in La.R.S. 45:123 meant "meter connection" and not the whole subdivision.Thus, while La.R.S. 45:123 restricts Dixie from providing service to any "meter connection" within 300 feet of Gulf States' high voltage transmission line, ¹ Dixie would be legally entitled to provide service to any "meter connection" located more than 300 feet from any electric line operated by Gulf States, whether or not a part of the lot on which that connection is located within 300 feet of the line.

Gulf States contends that, because some lots fall completely within 300 feet of their transmission line, Dixie may not service these lots.Gulf States argues that such a situation results in two different utilities servicing different parts of the same subdivision.Gulf States then cites Commission OrderNo. U-12749, Dixie Electric Membership Corporation v. Gulf States Utilities Company(Woodland Ridge Subdivision, First Filing), to argue that the Commission favors service within a subdivision by only one utility.The use of such an argument to contend that Gulf States service the entire subdivision because it maintains a transmission line within 300 feet of a few of the subdivision's lots is inconsistent with our ruling in South Louisiana Electric Cooperative Association v. Louisiana Public Service Commission, supra, and completely controverts our interpretation of La.R.S. 45:123.The argument put forward...