Mississippi Power & Light Co. v. City of Clarksdale
| Decision Date | 17 December 1973 |
| Docket Number | No. 47315,47315 |
| Parties | MISSISSIPPI POWER & LIGHT COMPANY v. CITY OF CLARKSDALE, Mississippi. |
| Court | Mississippi Supreme Court |
Wise, Carter, Child, Steen & Caraway; Richard B. Wilson, Jr., Jackson, Holcomb & Connell, Clarksdale, for appellant.
Hedgepeth & McDavid, Jackson, Dunbar, Merkel & Tollison, Clarksdale, for appellee.
Mississippi Power & Light Company (MP&L ), a public utility, filed a petition in the Circuit Court of Coahoma County against the City of Clarksdale (Clarksdale) for a writ of prohibition to bar condemnation proceedings filed by Clarksdale against MP in the County Court of Coahoma County. The circuit court denied the writ of prohibition and dismissed MP&L's petition. MP&L appealed to this Court, and Clarksdale cross-appealed.
MP&L has served Planters Manufacturing Company's large industrial complex situated inside the corporate limits of Clarksdale with electricity since 1927. MP&L has never operated under a franchise from the City of Clarksdale and has never used the streets or any public area of the city in serving Planters. MP&L has two or three poles with attached wires and other hardware located inside the city limits of the City of Clarksdale, and all of these are used to serve Planters and are located on the property of Planters. Clarksdale's application in the county court described one of these poles and 179 feet of wire and other hardware attached thereto as the property to be taken by eminent domain. It did not seek to condemn MP&L's certificate of public convenience and necessity, but it is the avowed purpose of Clarksdale to condemn the physical facilities used by MP&L in serving Planters, thus severing MP&L's transmission line, and thereafter to serve Planters as Clarksdale's customer.
After the enactment of the Public Utilities Act of 1956 (the Act) (Mississippi Code Annotated sections 77-3-1 et seq. (1972)), MP&L filed for and was granted by the Public Service Commission a 'grandfather' certificate of public convenience and necessity to continue serving Planters with electricity. This certificate was on a 'facility' basis rather than on the usual area basis. See Mississippi Power & Light Co. v. Delta Electric Power Association, 252 Miss. 832, 174 So.2d 356 (1965).
On the hearing in the circuit court of MP&L's petition for a writ of prohibition, Clarksdale offered proof that it would benefit economically to the extent of about $60,000 annually by serving Planters. It was also shown that MP&L would be damaged economically. Clarksdale established a public necessity for acquiring MP&L's franchise to serve Planters but did not show a public necessity for taking the physical property described in Clarksdale's condemnation application, unless it also acquired Planters as a customer.
The principal question raised by this appeal is: Does the law authorize Clarksdale to condemn MP&L's physical facilities used to serve Planters and take Planters as Clarksdale's customer without also condemning MP&L's operating rights?
The remedy by way of prohibition in force when this case arose was a statutory proceeding for the purpose of determining whether (1) the applicant seeking to exercise the right of eminent domain is of such character as is entitled to the right, and (2) whether there is a public necessity for the taking of the particular property sought to be condemned. Miss.Code 1942 Ann. § 2782 (Supp.1972) (Repealed Ch. 520, § 26, Laws 1971).
For many years municipalities have had the right to acquire and operate generating transmission and distribution systems by the exercise of the right of eminent domain. By Laws 1962, chapter 550, section 1, the Act was amended to define a 'system' as including any franchise held by the owner. Miss.Code Ann. § 21-27-11 (1972). Since 1956, under the provisions of the Act, no person can lawfully generate, transmit or distribute electricity without first obtaining from the Public Service Commission a certificate of public convenience and necessity, but any public utility owned or operated by a municipality shall not be subject to the provisions of the Act except as to extensions greater than one mile outside the corporate boundaries. Miss.Code Ann. § 77-3-1 (1972) 1. Clarksdale owns and operates an electric generating, transmission and distributing system and is not subject to regulation under the Act. The Act provided for the issuance of a 'grandfather' certificate to a public utility engaged in the operation of a facility on the effective date of the Act without proof on the question of public convenience and necessity. Miss.Code Ann. § 77-3-13 (1972).
The subsection relied on by Clarksdale as authority for its condemnation proceedings is Mississippi Code Annotated section 77-3-17 (1972), the pertinent part of which is as follows:
Any municipality shall have the right to acquire by purchase, negotiation or condemnation the facilities of any utility that is now or may hereafter be located within the corporate limits of such municipality.
MP&L contends that the only way MP&L's certificate of public convenience and necessity (hereinafter franchise) can be revoked is for the Public Service Commission to find that it is not rendering reasonably adequate service and then only upon failure to correct the inadequacy within a reasonable time. Miss.Code Ann. § 77-3-21 (1972). Alternatively, MP&L contends that Clarksdale is without authority to condemn MP&L's physical facilities without condemning its franchise. Clarksdale contends that it has the right to acquire the physical facilities of MP and thus terminate the connection of MP&L's transmission lines with Planters, whereupon MP&L's franchise to serve Planters is no longer efficacious or valuable. Clarksdale contends that this is so because the Act under which MP&L's 'grandfather' franchise was obtained also unqualifiedly granted unto Clarksdale the right to acquire MP&L's facility by condemnation.
A 'grandfather' franchise from the State is a valuable right and cannot be taken over by a competitor unless there has been a failure to provide adequate service and an opportunity to remedy the inadequacy given to the franchise holder. Capital Electric Power Association v. Mississippi Power & Light Co., 240 Miss. 139, 125 So.2d 739 (196...
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...because a contrary construction in that case would have rendered the statute at issue unconstitutional. See Mississippi Power & Light Co. v. Clarksdale, 288 So.2d 9, 12 (Miss. 1973) (concluding that statute "[could not] be constitutionally applied in [the] case unless the word ‘facilities' ......
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...because a contrary construction in that case would have rendered the statute at issue unconstitutional. See Mississippi Power & Light Co. v. Clarksdale, 288 So. 2d 9, 12 (Miss. 1973) (concluding that statute "[could not] be constitutionally applied in [the] case unless the word 'facilities'......
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