Louisiana Power & Light Co. v. Louisiana Public Service Commission

• Decision Date: 10 April 1978
• Docket Number: No. 60851,60851
• Citation: 358 So.2d 623
• Parties: LOUISIANA POWER & LIGHT CO., Plaintiff-Appellant, v. LOUISIANA PUBLIC SERVICE COMMISSION et al., Defendant and Intervenor-Appellees.
• Court: Louisiana Supreme Court

Page 623

358 So.2d 623

LOUISIANA POWER & LIGHT CO., Plaintiff-Appellant, v. LOUISIANA PUBLIC SERVICE COMMISSION et al., Defendant and Intervenor-Appellees.

No. 60851.

Supreme Court of Louisiana.

April 10, 1978.

Dissenting Opinion On Denial of Rehearing May 19, 1978.

Stanwood R. Duval, Jr., James M. Funderburk, Duval, Arceneaux, Lewis & Funderburk, Houma, for defendants-appellees.

Andrew P. Carter, Eugene G. Taggart, Monroe & Lemann, New Orleans, for plaintiff-appellant.

TATE, Justice.

The issue before us concerns whether either or both of two competing utilities erected "pre-emptive" lines in violation of La.R.S. 45:123 (1970).

Upon complaint of the South Louisiana Electric Cooperative Association ("SLECA"), the Louisiana Public Service Commission determined that the Louisiana Power & Light Company ("Louisiana Power") had, in violation of the cited statute, constructed a transmission line within 300 feet of an electrical transmission line serviced by SLECA. After remand of a first appeal to this court, 324 So.2d 430 (La.1975), the Commission likewise dismissed Louisiana Power's reconventional demand; this, similarly, had sought a determination that SLECA's construction of a transmission line paralleling Louisiana Power's was likewise an illegal pre-emptive line. ¹

Louisiana Power sought judicial review of these determinations of the Commission. La.Const. of 1974, Art. 4, Section 21(E). SLECA intervened in the district court proceedings. That court affirmed the Commission's determinations, and Louisiana Power appeals.

(1)

Preliminarily, we note that La.R.S. 45:123 prohibits (with exceptions not here material) any electric public utility from constructing a transmission or distribution line to any point of connection within 300 feet of an electrical transmission line of another public utility. The statute deems as thereby prohibited any line "originally constructed for the principal purpose of pre-empting territory."

The statute has been upheld as a valid regulation of duplication of utility electric service facilities, thereby intended to minimize the greater cost of electricity to consumers resulting from unnecessary duplicative electric plant facilities. The courts have further held that the constitutional regulatory power of the Commission, in effectuation of the statutory policy, includes within its scope orders to dismantle lines found to be pre-emptive or (as in this case) restricting their use to purposes not involving distribution of electricity to customers along the pre-emptive line.

See: Central Louisiana Electric Co. v. Louisiana Public Service Comm'n, 344 So.2d 1046 (La.1977); Louisiana Power & Light Co. v. Louisiana Public Service Comm'n, 322 So.2d 133 (La.1975); South Louisiana Electric Co-operative Ass'n v. Louisiana Public Service Comm'n, 309 So.2d 287 (La.1975). See also: Louisiana Power & Light Co. v. Louisiana Public Service Comm'n, 343 So.2d 1040 (La.1977); Louisiana Power & Light Co. v. Louisiana Public Service Comm'n, 324 So.2d 427 (La.1975); Louisiana Power & Light Co. v. Louisiana Public Service Comm'n, 322 So.2d 133 (La.1975).

(2)

On its appeal, Louisiana Power does not contest these principles. Rather, as we understand its arguments, Louisiana Power contests only the Commission determinations (a) that Louisiana Power's line was pre-emptive in purpose and therefore within the statutory prohibition and (b) that SLECA's line was not constructed for the principal purpose of pre-empting territory and, consequently, was "a line constructed and operated for the transmission and/or distribution of electricity", La.R.S. 45:123, within the meaning and protection of that statute.

Louisiana Power essentially contends that the Commission's determinations and its findings of fact are arbitrary and unreasonable and made without substantial evidence to support them.

(3)

In Louisiana Power & Light Co. v. Louisiana Public Service Comm'n, 343 So.2d 1040, 1044 (La.1977), we once again reiterated the principles that apply to judicial review of a commission order, as follows:

The orders of the commission are entitled to great weight and are not to be overturned on judicial review, unless shown to be arbitrary, capricious, or abusive of the commission's authority. Louisiana Oilfield Carriers Ass'n, Inc. v. Louisiana Public Service Commission, 281 So.2d 698 (La.1973) and many decisions therein cited. As there noted, a person attacking a commission order bears the burden of demonstrating that it is defective, since the order is presumed to be valid. See also Monochem, Inc. v. Louisiana Public Service Commission, 253 La. 1047, 221 So.2d 504 (1969).

Further, while a ruling of the commission may be deemed arbitrary unless supported by some factual evidence, the function of the court on judicial review is not to re-weigh and re-evaluate the evidence and to substitute its judgment for that of the administrative agency constitutionally entrusted with regulation of the matter. Truck Service, Inc. v. Louisiana Public Service Comm'n, 263 La. 588, 268 So.2d 666 (1972). As reiterated in Rubion Transfer and Storage Co. v. Louisiana Public Service Commission, 240 La. 440, 123 So.2d 880, 884 (1960): " ' * * * Whenever the Public Service Commission, in the issuing of an order, has acted within its power, and not arbitrarily or grossly contrary to the evidence, and when no error of law has been committed, the court must not substitute its judgment for that of the commission, or consider the expediency or wisdom of the order, or say whether on like evidence the court would have made a similar ruling.' "

(4)

Reviewed in the light of these principles, the Commission's findings of fact and its determinations will not be disturbed.

Prior to the controversy, Louisiana Power had transmission lines along the Little Bayou Black Road, a state highway. SLECA had transmission lines along the (main) Bayou Black state highway. At the point in controversy, the SLECA installations were some three miles south of and parallel to Louisiana Power's.

The Bayou Black and the Little Bayou Black state highways were connected at the point by Savanne Road, which had been constructed by the parish in 1972. The lands along this road were undeveloped; however, Conrad Lirette, one of the two landowners, was planning to open a subdivision. He had for several years discussed with SLECA his intention for that utility to furnish the electric service. About three days before Louisiana Power commenced its line, he applied to SLECA for a transmission line to service a site in his proposed subdivision.

Louisiana Power had been negotiating unsuccessfully with Southdown Sugar, another landowner, for a power-line right of way along the northern part of the Savanne Road. Abandoning these attempts to secure a right of way, on May 21, 1973 (three days after the Lirette request) Louisiana Power within four days quickly constructed on the police jury road right of way the 3.1 line here in question. ²

The line commenced from the Louisiana Power lines on the Little Bayou Black and terminated at its southerly end (near Bayou Black) at a point 156 feet from an existing SLECA transmission outlet.

The line terminated at a street light installed by Louisiana Power upon its completion. A police juror had allegedly requested installation of the light the day the construction of the line was completed; however, the date of his request is shown to be May 25. Immediately prior to SLECA's complaint before the commission, Louisiana Power relocated the streetlight northerly to a point some 350 feet from the SLECA line.

Substantial evidence thus supports the commission's determination that Louisiana Power's 3.1 mile line was principally built to pre-empt territory, in violation of La.R.S. 45:123, rather than having been constructed as a bona fide transmission line. Louisiana Power's hurried construction of the line, after its unsuccessful attempts to obtain a right of way, occurred after the landowner Lirette had formally applied for SLECA service. The entire southerly end of this line was built to service only one street light, for which Louisiana Power solicited an application from the police juror almost simultaneously with, if not subsequent to, the construction of the line. Testimony in the record further indicates that the usual practice is for police jurors to request installation of such services; not for the power company to seek an application for such an installation, and to build at $16,000 cost a line for the sole purpose of servicing street lights.

Nor do we find impressive, in view of the commission's rejection of them, Louisiana Power's other non-pre-emptive justifications for the sudden construction of the line in 1973: (a) a 1970 permission by the police jury to Louisiana Power to construct ten streetlights on the Ward 2 (northerly) part of the line, which Louisiana Power did not act upon until it suddenly constructed its line in 1973, not only in Ward 2 but into Ward 9 in which the Lirette property was located; (b) Louisiana Power's plans since 1970 to build a loop or feeder line down Savanne Road to connect its Little Bayou Black lines with other lines it maintained at some distance from the Bayou Black (southerly) end of the Savanne Road line. ³

Likewise, having found the Louisiana Power line to be prohibited as a construction primarily for the purpose of pre-empting the service to the territory, we find no difficulty in affirming the commission's determination that the SLECA line to the Lirette property (some 7,000 feet along Savanne Road) was constructed for proper transmission purposes. Prior to construction of the Louisiana Power line, Lirette had entered into discussions with SLECA for it to service the subdivision he planned off Savanne Road and had granted SLECA a right of way for that purpose. Three days before Louisiana Power constructed its line, in fact, Lirette had applied in writing to SLECA for it to furnish services...