State ex rel. Union Elec. Co. v. Public Service Com'n, No. 66014

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBLACKMAR; RENDLEN; DONNELLY; BILLINGS; BILLINGS
Citation687 S.W.2d 162
PartiesSTATE ex rel. UNION ELECTRIC COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Public Counsel for the State of Missouri, and Missouri Public Interest Research Group, Respondents.
Decision Date26 February 1985
Docket NumberNo. 66014

Page 162

687 S.W.2d 162
53 USLW 2463
STATE ex rel. UNION ELECTRIC COMPANY, Appellant,
v.
PUBLIC SERVICE COMMISSION of the State of Missouri, Public
Counsel for the State of Missouri, and Missouri
Public Interest Research Group, Respondents.
No. 66014.
Supreme Court of Missouri,
En Banc.
Feb. 26, 1985.
Rehearing Denied April 2, 1985.

Page 163

Paul A. Agathen, Debra H. Janoski, St. Louis, for appellant.

William C. Harrelson, Kent M. Ragsdale, Public Service Com'n, Jefferson City, Tom W. Ryan, Jr., Missouri Public Interest Research Group, St. Louis, Douglas Brooks, Richard W. French, Daniel L. Maher, Jefferson City, for respondents.

BLACKMAR, Judge.

Union Electric Company is an investor owned electric utility serving the St. Louis metropolitan area, other parts of Missouri, and parts of three other states. In 1975 it sought and received a certificate of convenience and necessity from the Missouri Public Service Commission to commence construction of two nuclear reactor power plants in Callaway County, Missouri. See State ex rel. Util. Consumers Council v. Pub. Serv. Com., 562 S.W.2d 688 (Mo.App.1978). The two projects are commonly known as Callaway I and Callaway II.

While the plants were in the process of construction, and before either had come on line for the generation of electric power, the voters of the state adopted at the 1976

Page 164

general election, through the initiative process, "Proposition One," now codified as §§ 393.135 and 393.136, RSMo 1978. Proposition One was enacted as a statute and not as a constitutional amendment. It reads as follows:

393.135--Any charge made or demanded by an electrical corporation for service, or in connection therewith, which is based on the costs of construction in progress upon any existing or new facility of the electrical corporation, or any other cost associated with owning, operating, maintaining, or financing any property before it is fully operational and used for service, is unjust and unreasonable, and is prohibited.

393.136--Notwithstanding the foregoing, any such charge which is being made or demanded on November 2, 1976, shall not be deemed unjust or unreasonable by reason of section 1 [§ 393.135] of this law, and shall not be prohibited thereby, for a period of ninety days after the effective date of this law.

Construction at both Callaway I and Callaway II continued following the enactment of Proposition One. No issue is presented in this case as to Callaway I. In 1981, however, Union Electric decided to abandon Callaway II, assigning as reasons the slackening of consumer demand and the high cost of borrowed funds. It then applied to the Commission for authority to amortize the portion of the costs expended on Callaway II attributable to Missouri over a five-year period. It sought to charge these costs as expense and not to include them in its rate base from which return on investment is computed. The Commission held that, by the terms of Proposition One, it was precluded from allowing the recovery of any amount from the ratepayers on account of the abandoned construction. Union Electric appealed to the Circuit Court of Cole County, which affirmed. Union Electric now appeals to this Court.

Jurisdiction

The question of our jurisdiction was raised in oral argument. We sense a degree of confusion in this case and others as to the scope of our initial appellate jurisdiction under Art. V, § 3, following the 1976 amendment. The pertinent language is as follows:

The supreme court shall have exclusive appellate jurisdiction in all cases involving the validity ... of a statute or provision of the constitution of this state, ...

Earlier constitutional language about "construction of the Constitution of the United States or this state" has been completely eliminated, and the numerous decisions about the difference between "construction" and "application" of constitutional provisions are no longer of concern. The sole question is whether the validity of the statute is involved. Appellant's Point II distinctly draws the validity of Proposition One into question. The appellant argues as follows:

If Proposition 1 is interpreted as a prohibition against recovery of prudent cancelled plant costs, denial of such recovery would deprive Appellant of its property without due process of law in violation of U.S. Const.Amend. XIV, Sec. 1, and Mo. Const. Art. 1, Sec. 10.

Appellant's Point III likewise argues that Proposition One, if interpreted as the Commission has interpreted it, violates the equal protection clause of the Fourteenth Amendment 1 and also Art. I, Sec. 2 of the Missouri Constitution. Appellant argues as follows:

If the Circuit Court's interpretation of Proposition 1 is correct, Appellant contends that it is a violation of the equal protection clause of the United States Constitution Amend. XIV, Sec. 1, and the Missouri Constitution Art. 1, Sec. 2, to single out electric utilities for treatment

Page 165

different from that accorded telephone, gas, sewer or water companies in this state.

Both of these points 2 clearly allege that Proposition One is constitutionally invalid if construed so as to prohibit the recovery of the cost of abandoned construction.

It makes no difference that the appellant first argues that the Commission and the circuit court erred in the construction of Proposition One, so that this Court could decide the case in its favor without reaching the constitutional questions. A statute is to be construed so as to render it constitutional, if this is possible. 3 A court will avoid the decision of a constitutional question if the case can be fully determined without reaching it. 4 If our appellate jurisdiction properly attaches jurisdiction is not lost if the case is decided without reaching the constitutional issues, because our jurisdiction extends to all issues in the case. Appeals are not bifurcated under our practice.

The dissent to the contrary notwithstanding, we perceive no "stratagem" on appellant's part to confer a jurisdiction on this Court which does not exist. Nor do we recognize, tacitly or otherwise, "the lack of our jurisdiction." The appellant made a decision about points to be preserved for appeal. 5 It had no way of knowing which point or points the decision might turn on. The Court of Appeals was without power to decide some of the points properly preserved. We know of no precedent by which a case could be taken to the Court of Appeals for resolution of some issues and then transferred to this Court for a decision or other issues. The historic and sound rule is that the appeal is properly lodged in the court having jurisdiction over all issues in the case.

The Merits

The respondents argue that Proposition One states clearly that no construction costs may be charged to the ratepayers until the facility is on line and ready to produce electric power. They go on to argue that, by the terms of the statute, construction work which is never incorporated into an operational facility can never be charged for. This latter proposition is by no means so clear as respondents would have it.

It is helpful to review briefly the theory of utility regulation. Utilities, and particularly electric utilities, enjoy natural monopoly in the distribution of services which, under modern conditions, are absolutely necessary for the public. Pace v. City of Hannibal, 680 S.W.2d 944 (Mo. banc 1984). The...

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23 practice notes
  • City of National City v. Wiener, No. S020887
    • United States
    • United States State Supreme Court (California)
    • October 29, 1992
    ...350 N.W.2d 337, 343, fn. 9; Kron v. Van Cleave (Miss.1976) 339 So.2d 559, 563; State ex rel. Union Elec. v. Pub. Serv. Com'n (Mo.1985) 687 S.W.2d 162, 165 & fn. 4; Board of Com'rs of Flathead County v. Eleventh Judicial Dist. Court (1979) 182 Mont. 463, 597 P.2d 728, 731; State, Department ......
  • People's Organization for Washington Energy Resources v. Washington Utilities and Transp. Com'n, No. 50264-1
    • United States
    • United States State Supreme Court of Washington
    • December 12, 1985
    ...Metro Area Transit Auth. v. Public Serv. Comm'n, 486 A.2d 682, 687-88 (D.C.1984); State ex rel. Union Elec. Co. v. Public Serv. Comm'n, 687 S.W.2d 162, 165-68 (Mo.1985); Abrams v. Public Serv. Comm'n, 104 A.D.2d 135, 483 N.Y.S.2d 785 (1984); Cohen v. Pennsylvania Pub. Util. Comm'n, --- Pa.C......
  • Rodriguez v. Suzuki Motor Corp., No. 80667
    • United States
    • Missouri Supreme Court
    • June 1, 1999
    ...The sole question is whether the validity of the statute is involved. State ex rel. Union Electric Co. v. Public Service Commission, 687 S.W.2d 162, 164 (Mo. banc In at least one case since the 1976 amendment, this Court based its jurisdiction on the notion that the constitutional claim was......
  • Johnson v. State, No. SC 92351.
    • United States
    • United States State Supreme Court of Missouri
    • May 25, 2012
    ...claim is meritorious, the remaining constitutional claims need not be addressed. See State ex rel. Union Elec. Co. v. Pub. Serv. Comm'n, 687 S.W.2d 162, 165 (Mo. banc 1985) (constitutional questions should be avoided if the case can be fully determined on other grounds).Standard of Review I......
  • Request a trial to view additional results
23 cases
  • City of National City v. Wiener, No. S020887
    • United States
    • United States State Supreme Court (California)
    • October 29, 1992
    ...350 N.W.2d 337, 343, fn. 9; Kron v. Van Cleave (Miss.1976) 339 So.2d 559, 563; State ex rel. Union Elec. v. Pub. Serv. Com'n (Mo.1985) 687 S.W.2d 162, 165 & fn. 4; Board of Com'rs of Flathead County v. Eleventh Judicial Dist. Court (1979) 182 Mont. 463, 597 P.2d 728, 731; State, Department ......
  • People's Organization for Washington Energy Resources v. Washington Utilities and Transp. Com'n, No. 50264-1
    • United States
    • United States State Supreme Court of Washington
    • December 12, 1985
    ...Metro Area Transit Auth. v. Public Serv. Comm'n, 486 A.2d 682, 687-88 (D.C.1984); State ex rel. Union Elec. Co. v. Public Serv. Comm'n, 687 S.W.2d 162, 165-68 (Mo.1985); Abrams v. Public Serv. Comm'n, 104 A.D.2d 135, 483 N.Y.S.2d 785 (1984); Cohen v. Pennsylvania Pub. Util. Comm'n, --- Pa.C......
  • Rodriguez v. Suzuki Motor Corp., No. 80667
    • United States
    • Missouri Supreme Court
    • June 1, 1999
    ...The sole question is whether the validity of the statute is involved. State ex rel. Union Electric Co. v. Public Service Commission, 687 S.W.2d 162, 164 (Mo. banc In at least one case since the 1976 amendment, this Court based its jurisdiction on the notion that the constitutional claim was......
  • Johnson v. State, No. SC 92351.
    • United States
    • United States State Supreme Court of Missouri
    • May 25, 2012
    ...claim is meritorious, the remaining constitutional claims need not be addressed. See State ex rel. Union Elec. Co. v. Pub. Serv. Comm'n, 687 S.W.2d 162, 165 (Mo. banc 1985) (constitutional questions should be avoided if the case can be fully determined on other grounds).Standard of Review I......
  • Request a trial to view additional results

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