City of New Strawn v. State Corp. Commission

622 P.2d 149, 5 Kan. App. 2d 630, 1981 Kan. App. LEXIS 209
CourtCourt of Appeals of Kansas
DecidedJanuary 16, 1981
DocketNo. 51,450
StatusPublished
Cited by3 cases

This text of 622 P.2d 149 (City of New Strawn v. State Corp. Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of New Strawn v. State Corp. Commission, 622 P.2d 149, 5 Kan. App. 2d 630, 1981 Kan. App. LEXIS 209 (kanctapp 1981).

Opinion

Meyer, J.:

The appellant City of New Strawn, Kansas (City), appeals from the State Corporation Commission’s (KCC’s) denial of Kansas Gas and Electric Company’s (KG&E’s) application for a certificate of convenience and necessity wherein KG&E sought to provide its service to City.

Appellee Coffey County Rural Electric Cooperative Association, Inc. (Coffey), was certificated by the KCC in 1938 and was the first and only electric supplier to serve the area which, in 1970, was incorporated as the City of New Strawn, Kansas. In 1977, City granted KG&E a franchise pursuant to K.S.A. 1979 Supp. 12-2001 to serve the City’s citizens. Coffey, since 1938, has, and still does, serve City, although Coffey has never been granted a franchise by City.

Having been granted the franchise by City, KG&E applied to the KCC for the necessary changes in certificates of public convenience for transmission rights from its substation at Wolf Creek Generating Station to the New Strawn city limits. Coffey, City, and appellee Kansas Electric Cooperatives, Inc., intervened and participated in the hearings before KCC.

The evidence taken at the hearings indicated that the cost to KG&E of building a new transmission line was projected at $100,000, plus the cost of any land to be condemned for the purpose of constructing the line. Also to be reflected in the cost of providing service to City by KG&E was the purchase price of Coffey’s existing distribution facilities in the City.

KG&E and City testified that because of delay by Coffey in acting upon a request for service to a mobile home park, the City’s growth had been limited. A developer testified that he withdrew his option to purchase a mobile home park due to Coffey’s delay and proposed high cost of services. There was countervailing evidence that the delay, if any, was very brief. KG&E testified that its feasibility study indicated its expense of $275,000 to duplicate existing transmission facilities to serve 200 customers would be beneficial to the public interest.

The KCC denied KG&E’s application January 4, 1979. The Commission made the following findings of fact and conclusions of law:

“In conjunction with the foregoing summary, the Commission finds and concludes that:
“1. KGE and Coffey are public utilities within the definition provided in Kan. [632]*632Stat. Ann. Supp. 1978 66-104. As a result, the Commission has jurisdiction to determine whether or not KGE’s application should be granted and whether or not the conflicting claims of Coffey should prevail.
“2. The statutory provision for determining whether or not a certificate to transact business should be granted is found in Kan. Stat. Ann. 66-131. The Commission’s discretion under this provision is limited by the Retail Electric Suppliers Act (Kan. Stat. Ann. 1978 Supp. 66-1,170 et seq.), which sets forth the requirements for the territorial certification of retail electric suppliers. Kan. Stat. Ann. 1978 66-1,172 provides that the Commission ‘shall cause the state to be divided into electric service territories . . .’, with only one electric supplier being authorized to serve customers in the territory certified to it.
“3. The public policy underlying the Retail Electric Suppliers Act is set forth in Kan. Stat. Ann. 66-1,171. It states:
“ ‘It is hereby declared to be the public policy of this state to: (a) Encourage the orderly development of retail electric service; (b) avoid wasteful duplication of facilities for the distribution of electricity; (c) avoid unnecessary encumbrance of the landscape of the state; (d) prevent waste of materials and natural resources; (e) facilitate the public convenience and necessity; and (f) minimize disputes between retail electric suppliers which may result [in] inconvenience, diminished efficiency and higher costs in serving the consumer. In pursuing such public policy, it is the purpose of this act to provide for the division of the state into territories within which retail electric suppliers are to provide the retail electric service as provided in this act.’
“4. Moreover, Kan. Stat. Ann. Supp. 1978 66-1,172 provides that each electric supplier shall continue to provide electricity to customers served by it on the effective date of the Retail Electric Suppliers Act of July 1, 1976.
“5. Based on the Retail Electric Suppliers Act, the Commission finds that it would be inappropriate to grant KGE the certificate requested in Docket No. 115,213-U to serve New Strawn. Under the act, the Commission cannot deprive an electric supplier such as Coffey the right to serve customers being served by it on the enactment date. Because Coffey was supplying New Strawn on July 1, 1976, the Commission is constrained from permitting KGE to provide service to New Strawn.
“6. The Commission finds that the public policy of the act would be violated if KGE were granted permission to construct a transmission line in Docket No. EL 16999. As noted earlier, one of the policies is to prevent duplication of facilities. Because the construction of a transmission line from the Wolf Creek Generating Station would duplicate existing transmission lines feeding into Coffey’s system at New Strawn, the Commission finds it inappropriate to grant KGE permission to built [sic] additional facilities. Moreover, the Commission finds that by denying KGE’s request, it will be possible to achieve other policies in the act, viz., the avoidance of unnecessary encumbrances and the prevention of waste.
“7. By relying on the Retail Electric Suppliers Act, KGE contends that the Commission will defeat the purpose behind the franchise statute (Kan. Stat. Ann. 12-2001 et seq.). The franchise statute permits a city to grant permission for utility operations. Under Kan. Stat. Ann. 66-2001, a
“ . . governing body of any city may permit any person, firm or corporation to manufacture, sell and furnish artificial or natural gas light, and heat, [633]*633electric light, water, power or heat or steam heat to the inhabitants. (Emphasis added.)’
“Although Kan. Stat. Ann. 66-2001 does confer the right to permit utility operations by a city, the right is not mandatory as evidenced by the word ‘may’. Therefore, the Commission is free to implement the Retail Electric Suppliers Act, even though the governing body of New Strawn is overturned in choosing KGE to serve the city under the franchise statute. This interpretation is reinforced by the language in Kan. Stat. Ann. 12-2002 which states that the franchise statute ‘shall not be construed ... to affect the jurisdiction of the corporation commission. . . .’ As a result, the franchise statute cannot affect the Commission’s jurisdiction under the Retail Electric Suppliers Act, and the determination that Coffey should be left to continue service to New Strawn.
“IT IS, THEREFORE, BY THE COMMISSION ORDERED THAT: the application of Kansas Gas and Electric Company for a certificate of convenience and authority is denied. Also denied are the other requests which accompany the application.”

KG&E and City applied for judicial review of the KCC order; the district court upheld that order. Only City appeals to this court.

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Cite This Page — Counsel Stack

Bluebook (online)
622 P.2d 149, 5 Kan. App. 2d 630, 1981 Kan. App. LEXIS 209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-strawn-v-state-corp-commission-kanctapp-1981.