DuVal v. Virginia Electric & Power Co.

216 Va. 226
CourtSupreme Court of Virginia
DecidedSeptember 5, 1975
DocketRecord Nos. 750028 and 750132
StatusPublished
Cited by3 cases

This text of 216 Va. 226 (DuVal v. Virginia Electric & Power Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DuVal v. Virginia Electric & Power Co., 216 Va. 226 (Va. 1975).

Opinion

Cochran, J.,

delivered the opinion of the court.

On August 20, 1974, Virginia Electric and Power Company (Vepco) filed its application with the State Corporation Commission, pursuant to Code § 56-245,1 for a temporary emergency rate increase to produce additional gross annual revenues of $127,346,000. After a public hearing at which evidence was introduced by Vepco, by the Commission Staff and by various intervenors, the Commission, by order entered October 1, 1974, denied motions to dismiss and authorized temporary rate increases to produce additional gross annual revenues of $97,700,000. Pursuant to the order, Vepco filed revised rate schedules and gave bond to insure prompt refund, with interest, of [228]*228all amounts in excess of such rates and charges as may be finally fixed and determined by the Commission.

These appeals challenge the constitutionality of Code § 56-245 (Repl. Vol. 1974), as well as the sufficiency of the evidence upon which the Commission’s order was based.

Appellants argue that Code § 56-245 is unconstitutionally vague for failure to define the “emergency” which permits the Commission to grant temporary rate increases. The word “emergency”, however, is not easily subject to misunderstanding. We have approved the definition of the word found in Webster’s Third New International Dictionary as “ ‘an unforeseen combination of circumstances or the resulting state that calls for immediate action.’ ” Portsmouth v. Chesapeake, 205 Va. 259, 266, 136 S.E.2d 817, 823 (1964). Although no refinement of this simple definition, understandable by laymen and lawyers alike, is necessary, the Commission itself in its majority opinion fairly stated the threshold issue to be a determination whether the utility’s ability to provide adequate and reliable electric service was in immediate jeopardy due to an emergency. We hold that the statute is not unconstitutionally vague.

Appellants further maintain that Code § 56-245 is unconstitutional because it delegates administrative powers without supplying adequate standards, in violation of principles established in Ours Properties, Inc. v. Ley, 198 Va. 848, 96 S.E.2d 754 (1957). But in that case we pointed out that a delegation of the power to exercise discretion, based upon a finding of facts, is not of itself improper. Id. at 852, 96 S.E.2d at 758. Here, there is such a delegation of power. The word “emergency” itself provides an adequate standard. It is no less definite and specific than the standard of “reasonable and just” by which the Commission is required to determine public utility rates under Code § 56-234 (Repl. Vol. 1974). This kind of terminology, delineating the policy framework within which a regulatory body is to make its findings of fact, has long been approved. Thus, in American Power & Light Co. v. Securities & Exch. Com’n., 329 U.S. 90 (1946), the Supreme Court of the United States sanctioned, as establishing adequate standards, § 11(b) (2) of the Public Utility Elolding Company Act of 1935, authorizing the Securities and Exchange Commission to require registered holding companies to take action if the continued existence of any company in a holding company system “ ‘unduly or unnecessarily complicate [s] the structure, or unfairly or inequitably distribute [s] voting power among security holders.... ’ ” Id. at 97.

[229]*229Appellants seek to distinguish American Power & Light Co. on the ground that in that case there was a legislative history, which they say is absent in the present case, to indicate the applicable standards. The evolution of present Code § 56-245 provides, however, a sufficient legislative history. Prior to its amendment in 1973 (Acts 1973, c. 262), Code § 56-245 had required the Commission, before granting a temporary rate increase, to find the following:

“[T]hat the net income of such public utility, after reasonable deductions for depreciation and other proper and necessary reserves, is less than the amount required for a reasonable return upon the value of such public utility’s property used and useful in rendering service to the public____”

Obviously, to make such a determination the Commission would have been required to conduct a full-scale hearing, thereby defeating the purpose of the statute to afford an expedited method of providing emergency relief. It is clear that the legislature intended by the 1973 amendment to replace the requirement of multiple findings with the requirement of a single finding “that an emergency exists.” A public utility is now entitled to a temporary rate increase if the Commission finds that an emergency exists that threatens to impair the utility’s ability to serve the public. Thus, the several standards by which temporary rate increases were formerly to be determined have been replaced by the single emergency standard. In addition, the amendment left unchanged the other jurisdictional requirement, not in issue in this appeal, that the Commission find that a hearing to make a final determination of rates will require more than ninety days of elapsed time. We hold that Code § 56-245 is not an unconstitutional delegation of administrative powers without adequate standards.

Vepco applied for emergency relief on the basis of its alleged inability to finance its construction program. Appellants have challenged the sufficiency of the evidence supporting the Commission order in which a finding was made that an emergency existed and a temporary rate increase was approved. Consequently, the evidence as to the Company’s financial status and the validity of its construction program is crucial in our review of the Commission’s order.

T. Justin Moore, Jr., President of Vepco, testified that the construction budgets for 1974 and 1975, after reductions aggregating approximately $281 million, were $479 million and $487 million, respectively. He further testified that construction of generating plants [230]*230was necessary to meet even the reduced growth rate projected for the future; that plants require 6 to 10 years to complete; that certain facilities under construction, such as Fossil Unit No. 5 at Possum Point, scheduled for commercial operation in 1975, and Nuclear Units 1 and 2 at the North Anna Nuclear Power Station, scheduled for commercial operation in 1976, cannot be curtailed without severely damaging the Company’s operations; that these facilities can be completed only with outside financing; that because of various restrictions only $55 million, a totally inadequate amount, can be raised by sale of additional bonds; and that financing construction through the sale of additional common stock can be accomplished only if greater earnings are obtained, through increased rates, to make the stock attractive to investors.

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216 Va. 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duval-v-virginia-electric-power-co-va-1975.