Tampa Elec. Co. v. Withlacoochee River Elec. Co-op., Inc.

• Decision Date: 24 June 1960
• Parties: TAMPA ELECTRIC COMPANY, a Florida corporation, Petitioner, v. WITHLACOOCHEE RIVER ELECTRIC COOPERATIVE, INC., a nonprofit Florida corporation, Respondent (two cases).
• Court: Florida Supreme Court

Page 471

122 So.2d 471

TAMPA ELECTRIC COMPANY, a Florida corporation, Petitioner, v. WITHLACOOCHEE RIVER ELECTRIC COOPERATIVE, INC., a nonprofit Florida corporation, Respondent (two cases).

Supreme Court of Florida.

June 24, 1960.

Charles S. Ausley of Ausley, Ausley & McMullen, Tallahassee, and Sam Bucklew, of Bucklew, Ramsey & Phillips, Tampa, for petitioner.

George C. Dayton, Charlie Luckie, Jr., of Dayton, Dayton & Luckie, Dade City, and J. Lewis Hall, of Hall, Hartwell & Douglass, Tallahassee, for respondents.

HOBSON, Justice.

This litigation involves two consolidated petitions for writs of certiorari on the alleged ground that the District Court's decisions ¹ are in direct conflict with this court's decision in the case of St. Joseph Tel. & Tel. Co. v. Southeastern Tel. Co., 1941, 149 Fla. 14, 5 So.2d 55.

The Second District Court of Appeal's opinion ² reflects the following pertinent facts:

'Tampa Electric Company is engaged in the business of manufacturing, distributing and selling electric energy. It is a public utility company in the State of Florida within the definition of Chapter 366, Florida Statutes, F.S.A., and holds a non-exclusive franchise to do business in the territory involved in this case. * * * The Withlacoochee River Electric Cooperative, Inc., is engaged in the same business as the Tampa Electric Company but is organized and exists under Chapter 425, Florida Statutes, F.S.A., which is an incorporation statute for cooperative, non-profit membership corporations, desiring to be organized thereunder, for the purpose of supplying electric energy in rural areas. A 'rural area' is defined therein as:

"* * * any area not included within the boundaries of any incorporated or unincorporated city, town, village, or borough having a population in excess of twenty-five hundred persons;'

'Section 425.04 sets out the powers given by the legislature to such cooperatives, included among which is the power to sell electric energy in rural areas (Subsection 4).

"* * * provided, however, that no cooperative shall distribute or sell any electricity, or electric energy to any person residing within any town, city or area which person is receiving adequate central station service or who at the time of commencing such service, or offer to serve, by a cooperative is receiving adequate central station service from any utility agency, privately or municipally owned individual partnership or corporation;"

Being an electric utility cooperative, Withlacoochee is not subject to the provisions of Chapter 366. In the instant cases Tampa Electric obtained a temporary restraining order enjoining Withlacoochee from furnishing electric energy to certain persons in a rural area.

'In the instant case Withlacoochee was restrained from supplying service to a corporation. The basis for the chancellor's findings was that the corporation is but the alter ego of a partnership, on adjoining land, which Tampa Electric was at the time serving. Ordinarily, such a suit could not be brought by the Tampa Electric, but would have to be brought by the state itself. In their complaint Tampa Electric alleged that unless the restraining order was so entered, it would take away from Tampa Electric certain valuable property rights by virtue of depriving Tampa Electric of the revenue which it would receive from the services to be rendered in the future and that the Tampa Electric would be irreparably injured thereby. So, in deciding the right of Tampa Electric to bring this suit we must necessarily take into account the allegations of the complaint, which we have just paraphrased.' ³ (Emphasis supplied.)

Referring to the foregoing, the majority of the District Court reversed the chancellor's order on the principal ground that under this court's decision in the St. Joseph case, supra, Tampa Electric does not have sufficient standing in a court of equity to bring the instant suits.

Associate Judge Murphree dissented because it was his belief that these cases fell within the exception to the general rule established in the St. Joseph case. ⁴ He also indicated that the cooperative's action violated the intendments of § 425.04(4), F.S.A. to the direct injury of the private property rights of Tampa Electric.

The following excerpt from the opinion in the St. Joseph case, supra, is pertinent for our consideration in view of the fact that it was and is relied on by both the petitioner and the respondent, as well as being the basis of the District Court's decisions:

'Under the law and practice in Florida, the State may invoke appropriate judicial remedies for an abuse or violation of corporate or franchise authority that is conferred pursuant to State law; but private parties or corporations may not invoke judicial remedies for an abuse of, or a violation of, corporate or franchise authority conferred by the State. * * *

'While the validity and scope of the corporate franchise rights conferred upon a public utility company may not be tested in a suit brought by a private party or...