East Mississippi Elec. Power Ass'n v. Mississippi Power Co.

• Decision Date: 07 December 1964
• Docket Number: No. 43222,43222
• Citation: 169 So.2d 473,251 Miss. 310
• Parties: , 57 P.U.R.3d 175 EAST MISSISSIPPI ELECTRIC POWER ASSOCIATION, Appellant, v. MISSISSIPPI POWER COMPANY et al., Appellees.
• Court: Mississippi Supreme Court

Page 473

169 So.2d 473

251 Miss. 310, 57 P.U.R.3d 175

EAST MISSISSIPPI ELECTRIC POWER ASSOCIATION, Appellant, v. MISSISSIPPI POWER COMPANY et al., Appellees.

No. 43222.

Supreme Court of Mississippi.

Dec. 7, 1964.

Floyd, Cameron, Deen & Prichard, Meridian, for appellant.

Eaton, Cottrell, Galloway & Lang, Gulfport, for appellees.

PATTERSON, Justice:

This is an appeal by East Mississippi Electric Power Association from a decree of the Chancery Court of Hinds County affirming an order of the Public Service Commission which denied a certificate of convenience and necessity to the appellant to serve a hunting lodge in Clarke County with electricity. The application of East Mississippi for such certificate was made pursuant to Mississippi Code Annotated section 7716-05(c) (1956). The Mississippi Power Company protested the application of East Mississippi Electric Power Association.

The area in question lies within Section 26, Township 1 North, Range 16 East, Clarke County, which is not presently served by either the appellant or appellee, and neither held, at the time of the hearing before the Commission, a 'grandfather' certificate to Section 26, though the Power Company had an application pending therefor under the provisions of Mississippi Code Annotated section 7716-05(b) (1956). This application for a 'grandfather' certificate by the Power Company in Docket U-99 of the Commission was pleaded in the answer of the Power Company to the present application. A hearing was had by the Commission on the application of the Power Company for its certificate under section 7716-05(b), but a decision had not been handed down at the time of the hearing on the application of East Mississippi under section 7716-05(c) for a certificate of convenience and necessity to serve a specific customer in Section 26. The cause is therefore pending on the docket of the Commission.

The application of East Mississippi was made in furtherance of a request received by it for electric service by the Melvin Lumber Company, which owned the hunting lodge in Section 26. East Mississippi has a 'grandfather' certificate for Section 25, which is of course adjacent to Section 26. The record reflects the lodge for which electric service was desired was located fourtenths of one mile to the west of the boundary of East Mississippi's certificated area, whereas the nearest existing facility of the Power Company is slightly in excess of four miles therefrom. The Power Company also has a request for electric service to the lodge from the same prospective customer, and has in fact entered into a contract therefor with the Melvin Lumber Company. Both litigants are ready, willing and able to serve the area.

The evidence reflects the above facts as to the area and distances involved. It also reflects the fact of the pending application for a 'grandfather' certificate by the Power Company under Docket U-99, and includes testimony to the fact that East Mississippi knew of the pendency of such application, which concerned the same area to which it now seeks a certificate, and had protested the same and produced witnesses who testified in opposition thereto. A witness of East Mississippi, as well as a witness of the Power Company, testified in this trial as to their former testimony given under the hearing on U-99. The order of the Public Service Commission which denied the application of East Mississippi refers to the Power Company's application for a 'grandfather' certificate in these words: 'The protestant's 'grandfather' application, Docket No. U-99, includes said Section 26 as part of its 'grandfather' area. Said cause, Docket No. U-99 has been heard by the Commission but no order has been granted thereon,' thus indicating that it had considered U-99 in its deliberations concerning the present application of East Mississippi for a certificate of convenience and necessity to the...