Mississippi Power & L. Co. v. Capital Elec. Power Ass'n

222 So. 2d 399, 1969 Miss. LEXIS 1532
CourtMississippi Supreme Court
DecidedApril 21, 1969
Docket45102
StatusPublished
Cited by6 cases

This text of 222 So. 2d 399 (Mississippi Power & L. Co. v. Capital Elec. Power Ass'n) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mississippi Power & L. Co. v. Capital Elec. Power Ass'n, 222 So. 2d 399, 1969 Miss. LEXIS 1532 (Mich. 1969).

Opinion

222 So.2d 399 (1969)

MISSISSIPPI POWER & LIGHT COMPANY, a Mississippi Corporation
v.
CAPITAL ELECTRIC POWER ASSOCIATION.

No. 45102.

Supreme Court of Mississippi.

April 21, 1969.

*400 Green, Green & Cheney, Wise, Carter & Child, Jackson, Fred B. Smith, Ripley, for appellant.

Hedgepeth & Hedgepeth, Jackson, for appellee.

SMITH, Justice.

Mississippi Power & Light Company appeals from a decree of the Chancery Court of the First Judicial District of Hinds County affirming a "cease and desist" order entered against it by Mississippi Public Service Commission upon petition of appellee, Capital Electric Power Association.

Capital Electric's petition, filed October 4, 1960, charged Mississippi Power with having invaded its service area, previously certificated to Capital Electric by the Commission on September 21, 1959, under the provisions of Chapter 372, Mississippi Laws of 1956, by constructing, maintaining and operating electric lines and other facilities in the area and by serving and offering to serve customers therein.

The area in question lay west of the City of Jackson and became a part of that city on March 17, 1960, through extension of its municipal boundaries.

On October 27, 1960, Mississippi Power answered and filed a cross petition claiming the right to serve the area, the City of Jackson was permitted to intervene on February 7, 1961, and afterward various pleadings, motions and exhibits were filed by the several parties.

In substance, the position of Mississippi Power, as reflected by its pleadings, was that, while the area, prior to its annexation, had been certificated to Capital Electric with its consent, in consenting it had expressly reserved the right to serve this or any other territory which might afterward become annexed to the City of Jackson, wherein Mississippi Power held a franchise.

As stated, the boundaries of the City of Jackson were extended on March 17, 1960, so as to include the area in question and Mississippi Power claimed that its franchise was thereby extended to include it; and, moreover, asserted that it was entitled to "follow the customer" (the City of Jackson) into the added area.

By way of affirmative defenses, Mississippi Power pleaded, inter alia, its municipal franchise granted on May 26, 1956, and averred that Capital Electric had no municipal franchise. Mississippi Power also asserted a "grandfather" right to the added territory by virtue of its service within the City of Jackson as it existed on the effective date of the 1956 Act and prior to the expansion of the municipal boundaries on March 17, 1960.

*401 By cross petition Mississippi Power demanded that Capital Electric be required to discontinue serving the area certificated to it but which now lay within the expanded municipal boundaries of the City of Jackson. There followed several hearings, mostly involving questions relating to pleadings, and a period of relative quiescence.

At the time there were pending on appeal to this Court two cases presenting substantially analogous factual situations. Those two cases have since been decided and are sometimes referred to as the "Winona" case and the "Clinton" case in reference to the municipalities where they arose.

On February 11, 1963, this Court decided "Winona," reported as Delta Electric Power Ass'n v. Mississippi Power & Light Co., 250 Miss. 482, 149 So.2d 504 (1963) and on March 11, 1963, decided "Clinton," reported as Capital Electric Power Ass'n v. Mississippi Power & Light Co., 250 Miss. 514, 150 So.2d 534 (1963).

In both Winona and Clinton Mississippi Power held municipal franchises and contended that, when the municipal boundaries were extended, their service area was likewise extended, even though such an extension encroached upon an area previously certificated to another utility. In both cases this contention was rejected by the Court.

Here, as in Winona and Clinton, Mississippi Power held a franchise to serve an area comprising a municipality, and as in Winona and Clinton there was an extension of the municipal boundaries so as to include within the municipality territory previously certificated to a power association. As in Winona and Clinton, Mississippi Power claims the right to serve that territory by reason of its incorporation into the municipality. Since the opinions in Winona and Clinton contain clear statements of the issues and of the Court's reasons for rejecting Mississippi Power's assertion of the right to serve the added territory, we will not repeat here what was said in those cases.

After the decisions in the Winona and Clinton cases were announced the Commission, considering that such decisions were controlling as to the issues, on motion, struck the answers of Mississippi Power and of the City of Jackson. Thereafter, however, with leave of the Commission, Mississippi Power filed an amended answer in which it brought forward its original contentions and also pled that it had succeeded to the rights of Jackson Gas Light Company, under a corporate charter granted it by the Mississippi Legislature in 1860 and amended in 1888, as well as to those of Light, Heat and Water Company under a charter granted it in 1888. It pled certain rights granted it by the Board of Supervisors of Hinds County permitting use of highway and road rights-of-way for construction of power lines. Also pleaded were other matters which we consider it unnecessary to detail here. The City of Jackson filed no further answer and appears to have abandoned the case.

Mississippi Power's argument that its municipal franchises expand coextensively with municipal boundaries into areas previously certificated to another utility was rejected in both the Winona and Clinton cases.

Upon conclusion of the hearing, the Commission found, therefore, that the decisions in Winona and Clinton controlled and issued its cease and desist order against Mississippi Power as prayed by Capital Electric. Mississippi Power appealed to the Chancery Court of the First Judicial District of Hinds County where the Commission's order was affirmed.

Mississippi Power contends that this was error, that Winona and Clinton are not controlling, and that rights possessed as successor to Jackson Gas Light Company and Light, Heat and Water Company under the 1860 and 1888 charters distinguish this case.

*402 In its brief filed with this Court, Mississippi Power now states that its "principal contention is that it holds nonexclusive, valid electric franchises covering the disputed area; and that these grants from the State are enforceable and constitutionally protected."

This contention is based upon an assertion that Mississippi Power is the lawful successor to Jackson Gas Light Company and Light, Heat and Water Company, and is the owner of their respective franchises. This claim is supported by a deraignment of title attached to the brief. The validity of Mississippi Power's title is challenged by Capital Electric but for the purposes of this opinion it will be assumed that it is good.

The charter of Jackson Gas Light Company was granted by the Mississippi Legislature by Chapter CCXLIII, February 10, 1860. This act incorporated an existing gasworks located in the City of Jackson. Chapter 427, Mississippi Laws of 1888, amended the charter previously granted so as to authorize electric service as follows:

SECTION 1.

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Bluebook (online)
222 So. 2d 399, 1969 Miss. LEXIS 1532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mississippi-power-l-co-v-capital-elec-power-assn-miss-1969.