Southwestern Elec. Power Co. v. Coxsey
| Decision Date | 27 January 1975 |
| Docket Number | No. 74--216,74--216 |
| Citation | 518 S.W.2d 485,257 Ark. 534 |
| Parties | SOUTHWESTERN ELECTRIC POWER CO. and Beaver Water District, Petitioners, v. Ted P. COXSEY, Chancellor, Respondent. |
| Court | Arkansas Supreme Court |
Richard L. Arnold, G. William Lavender, Texarkana, Leonard Greenhaw, Walter R. Niblock, Fayetteville, for petitioners.
James F. Dickson, Fayetteville (for Carroll Electric Co-op. Corp., appearing amicus curiae).
Carroll Electric Cooperative Corporation (Carroll) filed a petition for declaratory judgment. The defendants, appellants here, were Southwestern Electric Power Company (Swepco) and Beaver Water District (Beaver). It was alleged that Swepco was furnishing electric energy to Beaver and that such territory being serviced came under a certificate of convenience and necessity issued by the Arkansas Public Service Commission (APSC) to Carroll. The defendants demurred to the complaint, contending that the APSC had exclusive jurisdiction of the matter. The demurrers were overruled and Swepco and Beaver come to this court seeking a writ of prohibition directed to be Benton County Chancery Court. It is agreed that the single issue before us is whether APSC is the exclusive forum for the resolution of the dispute.
Carroll is a cooperative organization engaged in the sale of electric energy to its members in Benton County and surrounding areas. It operates in areas allocated to it by APSC. Swepco is in the same business in an area roughly described as the western one-fourth of the State, including certain allocated areas in Benton County. Beaver is a water district chartered by the Circuit Court of Benton County. It impounds, transmits and sells water to various minicipalities in northwest Arkansas.
The APSC, several years ago, awarded to Carroll a certificate of convenience and necessity to serve consumers in Sections 4, 5, 6, 7, and 8 in Township 18 north, range 29 west in Benton County. In that area are located water pumps and a water treatment plant belonging to Beaver. In 1972 an electric service contract was executed between Swepco and Beaver. The contract provided for electric service at an existing point of connection located outside the described sections and in Swepco's allocated territory. From that point the electricity would run over lines belonging to Beaver and into the area we have described as being allocated to Carroll. The energy so transferred would serve Beaver's water pumps and water treatment plant. It was the described contract and the service thereunder that generated the complaint filed by Carroll.
In support of its contention APSC is vested with exclusive authority in the matter before us. Swepco relies substantially on several statutes. The first citation is Ark.Stat.Ann. § 73--201(d), (d)(1), and (d)(2) (Supp.1973). It is contended that those statutes support the proposition that all three parties to this litigation are public utilities. We are next referred to the powers and duties of the APSC as reflected in Ark.Stat.Ann. § 73--202(a) (Repl.1957). That statute makes it the duty of the APSC to 'supervise and regulate every public utility in this Act defined, and to do all things, whether herein specifically designated, that may be necessary or expedient in the exercise of such power and jurisdictions, or in the discharge of its duty'. It is next pointed out that complaints against utilities shall be made in writing to the APSC 'setting forth any act or thing done or omitted to be done by any public utility . . ..' Ark.Stat.Ann. § 73--216 (Repl.1957). It is contended that 73--216 and rules adopted by the APSC provide a full and complete procedural scheme for the filing, hearing, and determination of complaints. Statutory-wide it is finally pointed out that the law makes it the duty of the APSC to bring suit against any person or corporation in violation of the Act, Ark.Stat.Ann. § 73--235 (Repl.1957).
Petitioners, Swepco and Beaver, rely heavily on our case of Southwestern Gas and Electric Co. v. City of Hatfield, 219 Ark. 515, 243 S.W.2d 378 (1951). The final determination to be made in that case was which of two competing electrical companies would in the future serve the electric distribution systems in the towns of Hatfield and Cove. The case was naturally before the APSC because it involved the sale of a utility, which action is required by statute to first gain the approval of APSC, ...
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