Inter-County Rural Electric Cooperative Corp. v. Public Service Commission

407 S.W.2d 127, 1966 Ky. LEXIS 139
CourtCourt of Appeals of Kentucky
DecidedOctober 14, 1966
StatusPublished
Cited by3 cases

This text of 407 S.W.2d 127 (Inter-County Rural Electric Cooperative Corp. v. Public Service Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Inter-County Rural Electric Cooperative Corp. v. Public Service Commission, 407 S.W.2d 127, 1966 Ky. LEXIS 139 (Ky. Ct. App. 1966).

Opinion

DAVIS, Commissioner.

The questions presented upon this appeal relate to a claimed right of appellant East Kentucky Rural Electric Cooperative Corporation (hereinafter East Kentucky) to Intervene in a proceeding before the Public Service Commission (hereinafter Commission). The precise nature of the issues raised on appeal will be better understood after a statement of the factual background.

Appellant Inter-County Rural Electric Cooperative Corporation (hereinafter Inter-County) is a rural electric distributing organization which sells and distributes electrical energy to consumers in certain areas of Marion and several other Kentucky counties. The appellee Kentucky Utilities Company (hereinafter KU) is a utility company which generates, transmits, sells and distributes electrical energy in numerous counties in Kentucky, including the counties served by Inter-County.

In the spring of 1965 a controversy arose between Inter-County and KU as to which of the companies was entitled to furnish energy to a manufacturing plant then being constructed near Lebanon. When the companies were unable to resolve this dispute, Inter-County filed its complaint before the Commission against KU. The complaint was filed May 1, 1965, and asserted the prior right of Inter-County to furnish the energy to the plant and averred that KU was improperly insisting upon its right to serve the customer. The basic relief sought by Inter-County was an order from the Commission authorizing Inter-County to furnish the service and denying KU the right to do so.

KU duly fjled answer to the complaint by which it joined issue and contended that it was properly serving the plant in question. The Commission set the matter for hearing on July 1, 1965.

Appellant East Kentucky had its counsel at the hearing on July 1st, and filed petition for permission to intervene. East Kentucky’s petition to intervene pointed out that East Kentucky is the wholesale ' power supplier of its member cooperative, Inter-County, and that the cost of power to Inter-County and to East Kentucky’s seventeen other member cooperatives is substantially affected by the relationship of East Kentucky and Inter-County. East Kentucky’s petition to intervene alleged that “ * * * the maintenance of integrity of Inter-County’s service area as well as the maintenance of the integrity of the service areas of all other member cooperatives of [East Kentucky] * * *” is a matter of vital importance in the cost of power and its rates and service to Inter-County and other member cooperatives. The petition to intervene contained this further language: “4. Because the decision of this Commission with respect to the service of the load mentioned in the pleadings herein filed will affect East Kentucky, it is appropriate as a party in interest and party intervenor herein.”

The Commission denied East Kentucky’s petition to intervene, and in doing so the Commission chairman stated from the [129]*129bench to counsel for East Kentucky at the hearing of July 1st:

“All right, gentlemen. The motion to intervene is overruled. The petition to intervene is dismissed and for reason, I might state, so you will understand the thinking of the commission, is that your connection with this case is just too remote to the supplier. Now, we have no objection if Mr. Newlin [counsel for Inter-County] wanted you to be [of] assistance to him, and he wants you to be of assistance, why, of course, you are entitled to stay in the Court Room.”

No formal order was entered on July 1, 1965, denying the petition to intervene. In fact, the only order of the commission relating to that ruling appears in the Commission’s final order dismissing the complaint of Inter-County, entered August 25, 1965. In the latter order appears a recitation of the fact that the Commission had overruled East Kentucky’s petition to intervene on July 1, 1965.

When the Commission announced its ruling denying East Kentucky the right to intervene, counsel for Inter-County represented to the Commission that he was not in position to proceed with the hearing and requested a continuance. The matter was continued to September 2, 1965. Before that time, however, Inter-County advised the Commission that it could not proceed without the assistance of East Kentucky. Acting upon that advice, the Commission dismissed the complaint of Inter-County by order entered August 25, 1965.

On September 3, 1965, Inter-County and East Kentucky filed complaint in the Franklin Circuit Court, attacking the August 25th order of the Commission dismissing the complaint of Inter-County. The Commission was the only named defendant. KU moved for permission to intervene, and its motion was sustained. Subsequently judgment was entered by the Franklin Circuit Court dismissing the complaint of East Kentucky and Inter-County and adjudicating that the Commission’s order of August 25th, 1965, was valid. The appellants would upset that judgment on the grounds (1) that the Commission was required to permit East Kentucky to intervene, and (2) that KU was not entitled to intervene in the Franklin Circuit Court action.

KU insists that the question of whether East Kentucky should have been permitted to intervene before the Commission is not before this court. It is contended that since the Commission ruled on July 1, 1965, that East Kentucky could not intervene, it was incumbent on East Kentucky to attack that ruling by appropriate action in the Franklin Circuit Court within twenty days after being served with the order. KRS 278.410. KU insists that the action filed September 3, 1965, came too late to reach the Commission’s ruling of July 1st. This contention overlooks the fact that no order of the Commission was entered until August 25, 1965. The Commission speaks through its records, and announcement of a ruling orally cannot furnish basis for an appeal. See KRS 278.-360 and Union Light, Heat & Power Co. v. Public Service Commission, Ky., 271 S.W.2d 361; compare Bee’s Old Reliable Shows, Inc., v. Kentucky Power Co., Ky., 334 S.W.2d 765.

Since the court proceeding did make timely attack upon the Commission’s refusal to permit East Kentucky’s intervention, this appeal properly presents the question here. The scope of judicial review of any order of the Commission is fixed by KRS 278.410, which prescribes in part that a judicial attack may be made on a Commission order “ * * * on the ground that it is unlawful or unreasonable.”

Learned counsel for the parties litigant state that they have been unable to find any decision in this jurisdiction specifically touching the question at bar. The applica[130]*130ble regulation as published by the Commission recites:

“In any formal proceeding, any corporation, association, body politic or person authorized by law to become a party to a proceeding before the Commission, may by timely motion request that he or it be granted leave to intervene. The motion shall set forth the grounds for the request, including the status and interest of the movant.

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407 S.W.2d 127, 1966 Ky. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/inter-county-rural-electric-cooperative-corp-v-public-service-commission-kyctapp-1966.