Empire Dist. Elec. Co. v. Cox
Decision Date | 04 October 1979 |
Docket Number | No. 10861,10861 |
Parties | The EMPIRE DISTRICT ELECTRIC COMPANY, a Kansas Corporation, Plaintiff-Respondent, v. Wendell F. COX and Marie L. Cox, his wife, Defendants-Appellants. |
Court | Missouri Court of Appeals |
David E. Dwyer, Spencer, Scott & Dwyer, Joplin, Robert L. Hawkins, Jr., James C. Swearengen, Hawkins, Brydon & Swearengen, P. C., Jefferson City, for plaintiff-respondent.
Eugene E. Andereck, Allen W. Baker, Stockard, Andereck, Hauck, Sharp & Evans, Jefferson City, for defendants-appellants.
Defendants are owners of a 104 acre tract of land (approximately) located adjacent to Missouri Highway 76, near Branson, Taney County, Missouri.
Plaintiff is a public utility licensed to do business in Missouri. Also, plaintiff is certified by the Missouri Public Service Commission (P.S.C.) to provide electrical utility service in specified areas in southwest Missouri.
On July 16, 1974, plaintiff filed a petition in condemnation of defendants' property in the Circuit Court of Taney County. Plaintiff sought to condemn, for use as an electric utility line easement, a strip of land, (30' X 3303') lying on the easternmost edge of defendants' property.
The Circuit Court of Taney County entered its order condemning the property of defendants. Exceptions to the appointed commissioners' report were filed by both parties. Following trial, after transfer to the Circuit Court of Polk County on the exceptions, the jury assessed damages in favor of defendants of $12,000.00.
It is this order of condemnation, and the subsequent judgment entered upon the jury verdict, from which the defendants appeal.
Defendants' first point relied on (labeled "Points and Authorities", in contravention of the mandates of Rule 84.04(d)) 1, is: "The Court erred in ignoring the expressed legislative direction of section 393.170(3) ( ) . . . ." Following this general statement of error are listed six sub-points defining with particularity the manner in which defendants have been allegedly aggrieved, with citations to 23 authorities in support of their contentions. Defendants' three major sub-points asseverate, in substance, that (a) defendants were deprived of their property without just compensation because plaintiff held no valid certificate of convenience and necessity upon which its condemnation action could be supported, (b) defendants were deprived of their property without due process of law because the court's decision permitted plaintiff to take and damage defendants' property without requiring plaintiff to produce and prove a valid certificate of convenience and necessity, and, (c) defendants were deprived of the contract rights which they had or were entitled to have under the deeds to their property because the court allowed plaintiff to take and damage their property without requiring plaintiff to produce and prove a valid certificate of convenience and necessity. All of the three major sub-points are followed by a single sub-point, each alleging that defendants have been deprived of the forum in which to challenge plaintiff's claim of a need for public use of defendants' land as contemplated in Chapter 393.
When reduced to essentials, it is apparent that defendants' first point relied on is bottomed on the premise that plaintiff was acting in disregard to the dictates of § 393.170(3) which require plaintiff to obtain a certificate of convenience and necessity before beginning construction of an "electric plant", as defined in § 386.020(12), under which, by definition, both parties agree, plaintiff's construction of power lines across defendants' land would be included. In addition, § 393.170(3) requires that, "(u)nless exercised within a period of two years from the grant thereof authority conferred by such certificate of convenience and necessity issued by the commission shall be null and void."
Plaintiff's actions in the condemnation proceedings and the subsequent construction of electric lines across defendants' land were based on a certificate of convenience and necessity validly issued to plaintiff by the P.S.C. in 1937, pursuant to an order issued by it in Case Number 9420. Thus, for a period of many years, plaintiff has, pursuant to the "area certificate" issued in 1937, continued to furnish electric service in specified areas in southwest Missouri, including Taney County, the county in which defendants' property is located.
The central issue presented by defendants' first point relied on, and each sub-point thereto, is: Does a certificate of convenience and necessity issued to a public utility by the P.S.C. pursuant to § 393.170, and exercised within a period of two years from the grant thereof, become null and void after two years? Or, stated another way, does § 393.170 require, at minimum, a reexamination every two years of each certificate of convenience and necessity issued by the P.S.C. and a concomitant showing by the public utility that there still exists a "public convenience and necessity" which would warrant allowing the utility to continue its operations as mandated by the certificate issued by the commission two years previously?
While orders of the P.S.C. are subject to judicial review (§ 386.510) the court is confined upon review to a determination of whether, on the facts before it, such order is reasonable and lawful. If the reviewing court finds the order both reasonable and lawful, its duty is to affirm it. If the order be found to be either unreasonable or unlawful, it should be set aside. State ex rel. Interstate Transit Lines v. Public Service Commission, 234 Mo.App. 554, 562, 132 S.W.2d 1082, 1086(3, 4) (1939). The court below has no authority to interfere with reasonable orders of the P.S.C. when supported by facts found on competent evidence (State ex rel. City of St. Louis v. Public Service Commission of Missouri, 329 Mo. 918, 927, 47 S.W.2d 102, 104(3) (banc 1931)), nor may it weigh evidence or substitute its judgment for that of the commission. State ex rel. Webb Tri-State Gas Co. v. Public S. Com'n, 452 S.W.2d 586, 588(2) (Mo.App.1970).
In applying the two-pronged "lawful and reasonable" test, we are given guidance in determining whether the commission's actions meet these criteria in State ex rel. Utility Consumers Council v. Pub. Serv. Com., 562 S.W.2d 688, 692(2, 3) (Mo.App.1978). Here the court interpreted § 386.510, in providing for judicial review of administrative action to determine the "reasonableness or lawfulness" of the action, to mean that an administrative order is lawful if the commission had statutory authority to issue it and the order is reasonable if it is supported by competent and substantial evidence on the whole record. See also, State ex rel. Ozark Electric Co-op. v. Public Service Com'n, 527 S.W.2d 390, 392(1, 2) (Mo.App.1975) and cases cited therein.
The defendants admit, in their brief and on oral argument, that the order issued by the commission in 1937 was lawful. We find, too, that issuance of an "area" or "blanket" certificate by the P.S.C., as was the subject certificate here, is an appropriate use of the powers delegated to it by the legislature. State ex rel. Harline v. Public Service Commission of Missouri, 343 S.W.2d 177, 182(8) (Mo.App.1960); State ex rel. Webb Tri-State Gas Co. v. Public S. Com'n, supra, 452 S.W.2d at 588(4).
The burden of proving that the commission acted unreasonably or unlawfully was clearly on defendants. § 386.430; State ex rel. City of St. Louis v. Public Service Commission of Missouri, 335 Mo. 448, 73 S.W.2d 393, 397(2) (banc 1934). In admitting that the 1937 certificate was issued lawfully, defendants fail to shoulder the burden of proving that at least one tine of the two-pronged test is not met by the commission. The only remaining test, then, is to determine whether the commission acted reasonably.
In order for this court to find that the commission acted unreasonably, thereby finding that the P.S.C. failed at least one prong of the test of acting "lawfully and reasonably", we must find that, when issued, the 1937 order and its accompanying certificate of convenience and necessity were not supported by competent and substantial evidence on the whole record. State ex rel. Ozark Electric Co-op. v. Public Service Com'n, supra, 527 S.W.2d at 392(1). This we cannot do. Proper notice and hearing were provided. Evidence was taken. A record was made. Much investment has been made pursuant to, and benefit derived from, the issuance of this 1937 order and certificate. We are unable to hold now that the commission's 1937 finding was not supported by competent and substantial evidence when made and therefore was "unreasonable."
In the face of analysis which unsuccessfully establishes that the commission acted contrary to statute in issuing the 1937 order and certificate, defendants next ask the court to find that the commission's (and the circuit court's) interpretation of § 393.170(3), specifically in regard to the two year provision, is incorrect. "The interpretation given an Ambiguous statute (assuming, arguendo that § 393.170(3) is ambiguous) by an agency or branch of government charged with its execution or administration is entitled to great weight in judicially ascertaining legislative intent, and, concomitantly, in resolving the statutory ambiguity." State ex rel. School Dist. of Kansas City v. Young, 519 S.W.2d 328, 333(5) (Mo.App.1975); Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193, 197(3) (Mo. banc 1972); see also State ex rel. Curators of Univ. of Mo. v. Neill, 397 S.W.2d 666 (Mo. banc 1966).
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