State ex rel. Ozark Elec. Co-op. v. Public Service Commission

• Decision Date: 06 October 1975
• Docket Number: No. KCD,KCD
• Parties: STATE ex rel. OZARK ELECTRIC COOPERATIVE, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent, The Empire District Electric Company, Intervenor. 27581.
• Court: Missouri Court of Appeals

Page 390

527 S.W.2d 390

STATE ex rel. OZARK ELECTRIC COOPERATIVE, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent, The Empire District Electric Company, Intervenor.

No. KCD 27581.

Missouri Court of Appeals, Kansas City District.

Oct. 6, 1975.

Application to Transfer Denied Dec. 8, 1975.

Almon H. Maus, Monett, Gregory C. Stockard, Jefferson City, for appellant.

Leland B. Curtis, Com'n Counsel, Michael K. McCabe, First Asst. Com'n Counsel, Jefferson City, for respondent, Missouri Public Service Com'n.

Robert L. Hawkins, Jr., James C. Swearengen, Graham & Hawkins, Jefferson City, for intervenor.

Before SOMERVILLE, P.J., PRITCHARD, C.J., and TURNAGE, J.

SOMERVILLE, Presiding Judge.

Ozark Electric Cooperative (Ozark), with marked tenacity, has run the gamut of procedural remedies to date in an effort to nullify an order of the Public Service Commission (Commission) granting a certificate of convenience and necessity to Empire District Electric Company (Empire) to render electric service to an unincorporated area in Greene County, Missouri. After invoking judicial review of the Commission's order before the Circuit Court of Cole County, and failing there to upset it, Ozark now resorts to this court in its nullification effort.

The entire matter is permeated with a familiar ring for those acquainted with the ever increasing territorial competitiveness in unincorporated 'rural' areas between unregulated electric utilities such an Ozark and regulated utilities such as Empire. The increased competitiveness just mentioned brought about by high density population points in traditionally unincorporated 'rural' areas, may have rendered the statutory distinction between regulated and unregulated purveyors of electric energy therein a superannuated concept. However, if so, it is a matter to be legislatively addressed.

Ozark's thesis on appeal is bifurcated--(1) a dearth of competent and substantial evidence on the whole record to show a public need for the electric service to be rendered by Empire in the certified area and (2) a duplication of electric facilities contrary to law and the public interest if the Commission's order is permitted to stand.

A unanimity of opinion exists between Ozark, appellant herein, and Empire and the Commission, respondents herein, as to the scope of appellate review of the Commission's order. As forged by the constitution of this state, condified by statute, and judicially construed on numerous occasions, the scope of judicial review of the Commission's order is sharply drawn in that it is relegated to a determination of whether it was lawful and reasonable. Mo.Const. Art. V, Sec. 22; Section 386.510, RSMo Supp.1973; State ex rel. Hotel Continental v. Burton, 334 S.W.2d 75, 78 (Mo.1960); Maag v. Public Service Commission, 384 S.W.2d 801, 806 (Mo.App.1964); and State ex rel. Beaufort Transfer Co. v. Clark, 504 S.W.2d 216, 217 (Mo.App.1973). The question of the order's 'lawfulness' turns on whether the Commission had statutory authority to issue it. Maag v. Public Service Commission, supra, and State ex rel. Beaufort Transfer Co. v. Clark, supra. The question of the order's 'reasonableness' turns on whether it is supported by the competent and substantial evidence on the whole record. State ex rel. Kansas City Transit, Inc. v. Public Service Commission, 406 S.W.2d 5, 11 (Mo. banc 1966); Maag v. Public Service Commission, supra; and State ex rel. Beaufort Transfer Co. v. Clark, supra. Section 393.170, RSMo 1969, empowered the Commission with authority to issue the controversial certificate of authority if, 'after due hearing', it determined that such was 'necessary or convenient for the public service'. See also State ex rel. Consumers Public Service Co. v. Public Service Commission, 352 Mo. 905, 180 S.W.2d 40, 44--45 (Banc 1944). Determination of the lawfulness of the Commission's order in granting the certificate of authority requires a concomitant determination of whether it was reasonable. If there is competent and substantial evidence on the whole record that the certificate of convenience and necessity awarded to Empire was 'necessary and convenient for the public service', then the Commission's order in granting the certificate was both reasonable and lawful. If the opposite be true, then the order of the Commission granting the certificate of authority was both unreasonable and unlawful.

The 'whole record' lends itself to being fairly summarized as follows:

Geographically, the certified area comprises a tract of ground approximately two and one-half miles by two and one-half miles lying west of the city limits of Springfield, Missouri, and closely adjacent to the south city limits of Willard, Missouri.

The certified area lies within an eight mile wide corridor that rings the city limits of Springfield. For a number of years electric service in the eight mile wide corridor was predominantly furnished by Ozark and the city utilities plant of Springfield. Prior to 1958 electric energy furnished by the city utilities plant of Springfield to users in the corridor area was purchased at wholesale from Empire pursuant to a contract. During the life of said contract, and in compliance with the terms thereof, Empire desisted from seeking authority for serving users in the corridor area. However, on the expiration of said contract, and more particularly since 1958, empire at various times sought and obtained authorization to serve a rather limited number of users in the corridor area, and, additionally, since 1927 has continuously served the electric energy needs of the city of Willard. The city of Willard lies in close proximity to the outer perimeter of the eight mile wide corridor heretofore mentioned.

Empire's application for the litigated certificate of convenience and necessity was prompted by a request for electric service from Thomas B. Smith, who in conjunction with his wife owned the Park Crest Water Co. Park Crest Water Co. was in the process of developing a 360 acre tract in the south part of the certified area. The...