State ex rel. Union Elec. Co. v. Public Service Com'n of Missouri

• Decision Date: 29 November 1988
• Parties: STATE of Missouri, ex rel. UNION ELECTRIC COMPANY, a Missouri Corporation, Appellant, v. PUBLIC SERVICE COMMISSION OF MISSOURI, Respondent, Cuivre River Electric Cooperative, Inc., Intervenor. WD 40531.
• Court: Missouri Court of Appeals

Page 626

765 S.W.2d 626

STATE of Missouri, ex rel. UNION ELECTRIC COMPANY, a Missouri Corporation, Appellant, v. PUBLIC SERVICE COMMISSION OF MISSOURI, Respondent, Cuivre River Electric Cooperative, Inc., Intervenor.

WD 40531.

Missouri Court of Appeals,

Western District.

Nov. 29, 1988.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 31, 1989.

Application to Transfer Denied March 14, 1989.

Katherine C. Swaller, Paul A. Agathen, St. Louis, for appellant.

Rodric A. Widger, Stockard, Andereck, Hauck, Sharp and Evens, Jefferson City, for intervenor.

Andrew Snider, Jefferson City, for respondent PSC.

Before LOWENSTEIN, J., Presiding, and TURNAGE and COVINGTON, JJ.

COVINGTON, Judge.

Union Electric Company (Union Electric) appeals from a judgment of the Circuit Court of Cole County affirming an order of the Missouri Public Service Commission (Commission) in favor of intervenor, Cuivre River Electric Cooperative, Inc. (Cuivre River). The judgment is reversed and remanded with directions.

The facts are not in dispute. Cuivre River is a cooperative corporation and a rural electric cooperative as referred to in section 394.315, RSMo Supp.1984. Union Electric is a Missouri corporation and an electrical corporation within the meaning of section 393.106, RSMo Supp.1984. St. Joseph Hospital West (hospital) is a hospital and related medical office complex in an unincorporated area of St. Charles County, Missouri. As of August 13, 1982, the effective date of the statute at issue, the site on which the hospital is now located contained no buildings or structures receiving electricity. At that time the site of the present hospital was comprised of four separate tracts of land capable of being bought and sold independently.

The Sisters of St. Mary, owner and operator of the hospital, purchased the real estate and contracted with J.S. Alberici Construction Company (Alberici) to build the hospital. Alberici requested that Cuivre River supply electric service to the hospital construction site. Cuivre River installed the meter in Alberici's name and began supplying electricity to the site on March 25, 1985, with the understanding that the service was to be temporary. On June 28, 1985, Cuivre River set the meter for temporary service to the hospital. As construction progressed, Cuivre River added additional lines and increased its service to Alberici. The Sisters of St. Mary never requested that Cuivre River supply electrical power to the Hospital or site. The Sisters of St. Mary negotiated with both Union Electric and Cuivre River for the provision of permanent electric service.

On November 22, 1985, Union Electric entered into an agreement with the Sisters of St. Mary to provide permanent electrical service to the hospital. In December, 1985, Cuivre River filed a complaint before the Commission requesting that Union Electric be prohibited from serving the hospital. On November 14, 1986, the Commission issued its Report and Order requiring Union Electric to cease and desist its efforts to serve the hospital since such service would violate the second provision of § 393.106, in that Cuivre River was already providing service to the hospital at the time Union Electric contracted with the Sisters of St. Mary. Union Electric's application for rehearing was denied, and it appealed to the Cole County Circuit Court where the Commission's decision was affirmed.

The question is whether Union Electric has violated § 393.106 by agreeing to provide electric service to the hospital. Section 393.106 provides in pertinent part:

Every electrical corporation and joint municipal utility commission shall be entitled to continue to supply retail electric energy to persons at metering points at which service is being provided on August 13, 1982. Notwithstanding any other provision of law to the contrary, no electrical corporation or joint municipal utility commission shall be permitted or required to supply retail electric energy to any person at a location where said person is receiving, or has within the last sixty days received, retail electric energy from another supplier of electric energy. Provided, however, that the commission may order otherwise after a finding that a change of suppliers is in the public interest for a reason other than a rate differential.

Cuivre River contends that if electric service is being provided to a "metering point" or "location," the provider of that electricity is entitled to continue service to that area, regardless of any change in the actual person being served. Since Cuivre River had been providing service to the hospital construction site ("metering point" or "location"), it is entitled to service the hospital at that location. Cuivre River further contends that temporary service to the hospital may not be distinguished from permanent service. Because the hospital location was receiving electric energy from Cuivre River from the time of the hospital's inception, the hospital may not now contract with the different provider.

Union Electric's position is that the first sentence of the statute gives Cuivre River the continuing right to serve Alberici ("persons") for so long as Alberici requires service at the hospital construction site. The second sentence, however, does not prohibit Union Electric from serving the hospital because the hospital ("said person") was not receiving electric service at the time Union Electric contracted to provide permanent service to the hospital. Union Electric's position is correct.

It is presumed the legislature intended that every word, clause, sentence, and provision of a statute have effect and be operative. Conversely, it will not be presumed that the legislature inserted idle verbiage or superfluous language in a statute. State ex rel. Ashcroft v. City of Sedalia, 629 S.W.2d 578, 583 (Mo.App.1981). To accept Cuivre River's interpretation of the statute, this court would necessarily be required to ignore the nouns "persons" and "person" contained in the statute, or, at least to supply the word "whatever" to serve as an adjective modifying the nouns. In either event, the nouns would be without meaning. This court cannot presume that the legislature inserted the words "person" and "persons" as mere surplusage. The words must be presumed to have effect. Cuivre River focuses upon "metering point" and "location" and gives those words dominance over "person" and "persons"; however, nothing in the wording of the statute warrants such a construction. Rather, the intendment of the statute must be that there exists a relationship between the persons served and the locations serviced; the meaning of one qualifies the meaning of the other. To find otherwise would render portions of the statute meaningless.

In support of its interpretation, Cuivre River relies upon Missouri Public Service Co. v. Platte-Clay...