Missouri Public Service Co. v. Platte-Clay Elec. Co-op., Inc.
| Decision Date | 14 November 1966 |
| Docket Number | PLATTE-CLAY,No. 51750,No. 1,51750,1 |
| Citation | 407 S.W.2d 883 |
| Parties | MISSOURI PUBLIC SERVICE COMPANY, a Corporation, Plaintiff-Appellant, v.ELECTRIC COOPERATIVE, INC., a Corporation, Defendant-Respondent. Kansas City, Missouri, a Municipal Corporation, Intervening Plaintiff-Appellant, W. H. Harris, Robert Hanks and Glenn D. Petty, Intervening Defendants-Respondents |
| Court | Missouri Supreme Court |
Robert L. Hawkins, Jr., Graham & Hawkins, Morris E. Osburn, Jefferson City, Alan F. Wherritt, Liberty, John C. Mills, III, Kansas City, for plaintiff-appellant.
Walter A. Raymond, Raymond, West & Cochrane, Kansas City, David R. Clevenger, Clevenger & Lay, Platte City, Arthur R. Kincaid, Hale, Coleberd, Kincaid & Waters, Liberty, for respondent Platte-Clay Electric Coop., Inc.
Herbert C. Hoffman, City Counselor, William Icenogle, Associate City Counselor, for appellant Kansas City.
James W. Benjamin, Rogers, Field & Gentry, Kansas City, L. M. Bywaters, Liberty, David D. Lodwick, Excelsior Springs, for respondents W. H. Harris, Robert Hanks and Glenn D. Petty.
HOUSER, Commissioner.
This is a suit for a declaratory judgment and injunctive relief, brought by Missouri Public Service Company, a privately owned public utility rendering electric service in Kansas City and other areas of Missouri, against Platte- Clay Electric Cooperative, Inc., a cooperative rendering electric service in rural areas of Platte, Clay and other counties. On January 1, 1962 the City of Kansas City annexed certain rural areas in Platte and Clay Counties in which the cooperative was serving 63 customers, and the city, which previously had granted plaintiff company a 30-year franchise to supply electrical service in certain areas of the city, passed an ordinance giving the company like permission in the newly annexed areas. In this action plaintiff company questions the right and authority of the cooperative to continue to render service in the annexed areas. Relying upon the procedures provided for in § 394.080, 1 V.A.M.S., plaintiff company prayed in Count I for a judgment declaring that the cooperative is engaged in illegal competition with plaintiff company and has no authority to continue to render service to existing or other and additional customers in those areas, and prayed in Count II for injunctive relief to restrain the cooperative from continuing to render or undertaking and offering to render such service, and for other appropriate relief. The City of Kansas City was allowed to intervene as a plaintiff. Three individuals, members of the cooperative, were permitted to intervene as parties defendant, as representatives of the class composed of 63 members receiving service from the cooperative in the annexed areas. The circuit court found against plaintiff company and for the cooperative and intervening defendants, declaring that the cooperative and its members have vested property and contract rights of which they cannot lawfully be deprived through the procedures instituted under § 394.080, and that the cooperative has authority to continue to render service to its present members and their successors in interest, and that the present members of the cooperative and their successors in interest have the right to continue to receive service from the cooperative in these areas without interference by plaintiff company or Kansas City. The court enjoined plaintiff company and Kansas City from interfering with the cooperative's maintenance of its facilities and its rendition of service to 'its members and their successors in interest in said annexed areas' and from interfering with its members receiving service from the cooperative. Plaintiff company and Kansas City appealed. On the question of our jurisdiction plaintiff company asks that the cooperative be ordered to cease rendering service to its present customers in the annexed areas over its facilities and equipment, which the record shows has a reproduction cost new less depreciation of $84,375 and a going concern value of $3,100; property which it would cost $23,860 to dismantle and sever from the land. Plaintiff company contends that the cooperative, having refused its amount of $15,000 at the time the to nothing. Accordingly, the value of the physical property appears from the record to be greatly in excess of our jurisdictional amount of $12,000 at the time the appeal was taken, and the loss to the cooperative in the event the relief sought by plaintiff company should be granted, would exceed $15,000. In this situation this Court has jurisdiction of the appeal. State ex rel. Public Water Supply District No. 2 of Jackson County v. Burton, et al., Mo.Sup., 379 S.W.2d 593(1), and cases cited 379 S.W.2d l.c. 595.
The cooperative, initially organized on August 29, 1938 under Article 29, Chapter 87, RSMo 1929, voluntarily elected to come under and is presently existing under and subject to The Rural Electric Cooperative Law, Chapter 394, V.A.M.S. In August, 1938 the County Courts of Clay and Platte Counties granted to cooperative's predecessor a 'perpetual franchise' authorizing it to use the roads, highways, streets, etc. and other public ways and places of the two counties for the construction and maintenance of its equipment to facilitate the conduct of its business, 'subject, however, to any laws or regulations imposed by statute.' The cooperative paid occupational taxes to Kansas City during the years 1962, 1963 and 1964. It does not hold a franchise from Kansas City, and renders service within the annexed area without the consent of the city. Service is rendered to members only. Membership is governed by the by-laws. The cooperative is not subject to the jurisdiction of the public service commission, except to the limited extent provided by § 394.160. The 63 members residing in the annexed areas are part of a total membership of approximately 4,600. The rates charged by the cooperative are considerably less than that charged by plaintiff company. The members are satisfied with the service rendered by the cooperative. Upon annexation the areas annexed defined in § 394.020(1). Since annexation defined in § 394.020 (1). Since annexation the cooperative has continued to serve its members in the portions of the annexed areas served by plaintiff company, and intends to continue to serve them, and intends to render service to customers other than those to which it was rendering service at the date of annexation, and will install additional physical facilities to serve three members have been added to the list of customers receiving service from the list of customers receiving service has been added to any tract of land which was not added to any tract of land whichh was not receiving service prior to January 1, 1962. The only new facilities added in the annexed areas have been meter poles and metering connections. The cooperative has not 'heavied up' its lines in the annexed areas.
Plaintiff company, operating under a certificate of public convenience and necessity issued by the public service commssion and a 30-year nonexclusive franchise granted by Kansas City, is and for years past has been operating in the annexed areas. At time of trial it was rendering electric service to 698 customers therein. Plaintiff company is willing and able to render electric service to all of the cooperative's customers in the annexed areas, pursuant to the rules and regulations of the public service commission.
Twice plaintiff company requested the cooperative to negotiate for the sale of the physical property of the cooperative located within the annexed areas but the cooperative declined to negotiate and has stated that said property is not for sale at any price. On February 5, 1962, following the annexation on January 1, 1962, plaintiff company filed an application with the public service commission under $ 394.080 the public service commission under § 394.080(4) seeking a finding as to the fair physical property. Following a hearing the commission made an order, effective July 1, 1962, fixing that value at $126,615. Severance damages to be sustained upon removal of the facilities in the sum of $23,860 were included in that figure. No appeal was taken from that order. On August 6, 1962 plaintiff company offered the cooperative $126,615 for its property, but the offer was declined and the cooperative continues to decline to accept this amount and sell and convey its property to plaintiff company.
Instead of stating in extenso the many points and contentions made by the several parties we will undertake in the following analysis to decide the questions determinative of this appeal.
In August 1938 the territory in question was a rural area lying entirely outside the corporate limits of any municipality. The county courts of Clay and Platte Counties had sole jurisdiction and authority to grant franchises to cooperative's predecessor to build and operate an electrical distribution system on and along the roads, highways and public ways of that territory. That authority was derived from § 2078, RSMo 1929, which invested in the county court the control and management of the real property belonging to the county, and § 7924, RSMo 1929, requiring that the assent of the county court be obtained before poles for electric light wires could be erected on the public roads and highways of any county. Under the law then existing (unchanged to this date) a county court had power to grant a perpetual franchise for the surposes mentioned. County courts are not circumscribed by general laws of the state limiting the duration of such franchises to a certain number of years. In the absence of any general law limiting the duration of franchises for the operation of an electrical system on the roads and highways of a county, the grant of a franchise for that purpose, without specifying a period of duration, is a grant in perpetuity. State on inf. McKittrick ex rel. City of Trenton v....
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