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

• Decision Date: 28 February 1977
• Docket Number: No. 58751,58751
• Citation: 343 So.2d 1040
• Parties: LOUISIANA POWER & LIGHT COMPANY, Plaintiff-Appellant, v. LOUISIANA PUBLIC SERVICE COMMISSION et al., Defendants-Intervenors-Appellees.
• Court: Louisiana Supreme Court

Page 1040

343 So.2d 1040

LOUISIANA POWER & LIGHT COMPANY, Plaintiff-Appellant, v. LOUISIANA PUBLIC SERVICE COMMISSION et al.,

Defendants-Intervenors-Appellees.

No. 58751.

Supreme Court of Louisiana.

Feb. 28, 1977.

Rehearing Denied April 7, 1977.

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

Marshall B. Brinkley, Baton Rouge, for defendants-appellees.

E. Rudolph McIntyre, Winnsboro, John Schwab, Baton Rouge, for intervenor-appellee.

TATE, Justice.

By these proceedings, the plaintiff utility ('Louisiana Power') seeks judicial review of an order of the defendant commission. The order resulted from a complaint filed in the commission by another utility ('Northeast'), intervenor in these judicial proceedings. Northeast there claimed that, in violation of a commission general order, Louisiana Power was constructing duplicative facilities to serve a customer within a geographic area now served by Northeast.

Louisiana Power appealed to the district court for judicial review of the commission adjudication of this dispute in favor of Northeast, which ordered that Northeast's lines provide service in the area. The district court upheld the order, following which Louisiana Power now appeals directly to this court. See La.Constitution of 1974, Article 4, Section 21(E).

Upon its appeal, Louisiana Power attacks: (1) the commission's conclusion that Louisiana Power's facility was duplicative of the service furnished by Northeast to the area; (2) the commission's failure to conclude that service to be furnished by Louisiana Power would be more economical and reliable than that to be available from Northeast; (3) and, in the alternative, the validity of agency's general order which the commission held was violated by Louisiana Power's duplicative facility.

I.

Before discussing the factual context of this litigation, we deem it appropriate to discuss Louisiana Power's contention claiming invalidity of the commission's general order held to be violated by it.

The general order is entitled 'In re: Duplication of Electric Service.' The full text of the order is set forth at Appendix 1 below.

The stated purpose of the general order is to prohibit uneconomic and wasteful practices in the service of electricity, in order to maintain reasonable rates. The commission determined that 'wasteful competitive and unwise expenditures and investments which become a burden upon the rate payers' result from 'the paralleling and duplication of existing transmission or distribution lines . . . or the extensions of either by electric public utilities to serve customers readily accessible to like facilities of an electric public utility already providing service in the immediate area.'

The commission therefore ordered 'That no extension of electric transmission or distribution lines shall be made by an electric public utility that will duplicate the transmission and distribution lines . . . of another like utility, nor shall extensions be made to serve customers that could be served from such electric public facilities already in existence in an economic and justifiable manner.'

At the time the general order was issued, Louisiana Power did not attack its validity, although under the rules of the commission a procedure was available for it to do so for a period before and following issuance of the order. Further, as the commission points out, Louisiana Power thereafter has sought relief before the commission and the courts on the basis of the validity of this order. See, e.g., Louisiana Power & Light Co. v. La. Pub. Serv. Com'n., 324 So.2d 427, 429 (La.1975).

The commission's brief suggests that the validity of the general order upon which the administrative adjudication is based is not properly before us for judicial review: It was not attacked in the administrative proceedings prior to the suit in district court for judicial review of the agency adjudication. Nevertheless, we pretermit decision of this preclusion issue, because the issue is not squarely raised by the pleadings in the district court, and since the record before us does not indicate clearly that the plaintiff could have raised the invalidity of the rule-making (general) order in the adjudicatory proceedings for which judicial review is now sought. ¹

The general order was issued upon the constitutional authority of the commission to regulate public utilities and to adopt reasonable rules and regulations necessary for the discharge of the this duty. La.Constitution of 1974, Article 4, Section 21(B). ²

Louisiana Power attacks the validity of the order upon three principal grounds:

(1) It first attacks the validity of the genreal order as attempting to grant a franchise to utilities in violation of Article 12, Section 14, La.Constitution of 1974 (which prohibits exclusive and perpetual franchises), and in the absence of statutory authority for the commission to grant any franchise.

The general order, on its face, does not purport to do so (see Appendix 1 below). Within the regulatory scope of the commission's authority, the order merely regulates the construction of duplicating electric facilities, having regard to the effect of wasteful utility competition and expenditure upon the rates which must be charged to pay for them. See Louisiana Gas Service v. Polaris Corporation, 254 La. 297, 223 So.2d 810 (1969).

(2) The plaintiff utility next suggests that the exercise of the commission's rule-making power in this regard violates its right to own and use private property, Article 1, Section 4, La.Constitution of 1974.

However, this constitutional provision also notes: 'This right (of private ownership of property) is subject to reasonable statutory restriction and the reasonable exercise of the police power.' There is no showing whatsoever that the commission's general order inhibiting duplicative electricservice facilities (the cost of which will ultimately be borne by rate payers) is an unreasonable exercise of its constitutional and legislative regulatory powers over public utilities and their rates.

(3) Finally, Louisiana Power argues that the commission's general order constitutes an invasion of the power of the legislature. The basis for this argument is that the commission's order prohibits duplicative utility construction to an area immediately served by the facilities of another utility; whereas by La.R.S. 45:123 (1970) the legislature prohibited construction of duplicative facilities only to points located within 300 feet of another utility's electric line.

As we previously noted, the broad regulatory power of the commission includes within its scope the issuance of a general order inhibiting duplicative utility facilities, such as the present. Ths cited legislative enactment, though more limited in application, is not in conflict with the general order of the commission, which is likewise directed against duplicating utility facilities.

We are not impressed by this contention of the plaintiff. We are cited to no authority that, because the legislature addresses itself to a Part of a problem within the constitutional authority of the commission to regulate, the commission is deprived of its constitutional power to issue regulations concerning broader aspects of the issue with which the legislature concerned itself only in part. ³

We conclude, therefore, that the plaintiff utility's attack on the validity of the general order is without merit.

II.

The remainder of Louisiana Power's contentions attack the commission's factual and legal conclusions that its general order was violated, as well as some of the findings of fact by the commission.

Preliminarily, we note the principles applicable to judicial review of a commission order:

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 Com'n., 263 La. 588, 268 So.2d 666 (1972). As reiterated in Rubion Transfer and Storage Co. v. Louisiana Public Srvice 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.'

The most arguable contention advanced by Louisiana Power is that its proposed six-mile line was not a duplication of any existing electric transmission or distribution lines of Northeast, as prohibited by the general order.

The contention is based upon the following facts:

The dispute arises out of the desire of Louisiana Power to provide electric service to a pipeline company's new pumping station built near Oak Grove. The pumping station is 334.48 feet from an existing line of Northeast, and in an area immediately served by other electric lines of Northeast.

The evidence further shows that a three-phase, 34,500-volt electric line is necessary to...