Mississippi Public Service Commission v. Mississippi Power Co.

366 So. 2d 656, 1979 Miss. LEXIS 2204, 1979 WL 396362
CourtMississippi Supreme Court
DecidedJanuary 24, 1979
DocketNo. 50850
StatusPublished
Cited by4 cases

This text of 366 So. 2d 656 (Mississippi Public Service Commission v. Mississippi Power Co.) 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 Public Service Commission v. Mississippi Power Co., 366 So. 2d 656, 1979 Miss. LEXIS 2204, 1979 WL 396362 (Mich. 1979).

Opinion

COFER, Justice, for the Court:

Mississippi Power Company (MPCo), is a public utility serving an extensive area in southeast Mississippi. An excellent general view of it may be had by examination of the Court’s opinion in Mississippi Power Company v. Mississippi Public Service Commission, 291 So.2d 541 (Miss.1974).1

The present appeal to this Court is from a decree of the Chancery Court of the First Judicial District of Hinds County reversing appellant’s order on appellee’s application for an increase in the rates charged its consumers.

On the 7th day of November, 1975, appel-lee filed with appellant (Commission) its notice of intention to put into effect on December 7, 1975, new schedules of rates with supporting data as required in Mississippi Code Annotated, section 77-3-37 (1972). There followed the procedure of suspension of the proposed rate charges and application of the rates notwithstanding the suspension by MPCo’s posting a refunding bond, in accordance with section 77-3-39, and the Commission controverted the proposal to charge the changed schedule of rates, and, after a lengthy hearing amassing twelve volumes of record, the Commission entered order as required by Section 77-3-59.

By its new schedules of rates, MPCo sought an increase of $14,380,000, of which the Commission approved an increase of $5,986,000, 41.627% of that sought. Appeal therefrom to the chancery court resulted in a reversal of the Commission’s order and remand to the Commission. The chancellor concluded that, in its findings and order, the Commission did not give due consideration to the necessity of coverages required by the Securities and Exchange Commission for MPCo’s long term debt and preferred stock; the increased cost of operations, supplies, materials, and labor; the high embedded cost of debt and preferred stock; the necessity for increased dividends; requirements and cost of shifting to alternate fuel facilities and the necessity for plant expansion to meet the growing needs of the rapidly developing certificated area.

The chancellor concluded that the Commission’s order is contrary to the overwhelming weight of the evidence, is unsupported by substantial evidence, and is confiscatory in its effect on MPCo.

He affirmed the Commission’s order denying a change of approach to fuel adjustment sought by MPCo, and otherwise reversed and remanded the case to the Commission for further appropriate action.

The Commission has brought the case to this Court on the reversal (MPCo perfected a cross appeal on the fuel adjustment issue, but has abandoned it, and the cause is before us only on direct appeal.)

Errors assigned, eight in number, may be condensed to these issues: The chancellor erred (1) in acting beyond his scope of authority in reviewing the Commission’s order, (2) in finding that the testimony of Dr. Bicksler (the Commission staff’s expert) was improperly considered by the Commission, (3) in finding the Commission gave no consideration to MPCo’s coverages required for mortgage loans and for preferred stock [659]*659sales, (4) in finding MPCo had met its burden of showing reasonableness of its proposed rates increases, and (5) in finding the Commission’s order to be (a) contrary to the overwhelming weight of the evidence, (b) confiscatory and not supported by substantial evidence, and (c) unreasonable in the increase allowed.

In the first of these condensed assignments, the Commission contends that the chancellor exceeded his authority by determining the rates for MPCo customers to pay.

Mississippi Code Annotated, section 77-3-67 (1972), (subsequently amended in a part not pertinent to this decision), says as to judicial review of commission orders:

The order shall not be vacated or set aside either in whole or in part, except for errors of law, unless the court finds that the order of the commission is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the commission or violates constitutional rights.

As enunciated in MPCo, 1976, supra, and decisions therein cited, rate making is a legislative matter, and, in such cases as here, authority to prescribe rates belongs to the Commission. (337 So.2d at 940).

Judicial review, which does not include preemption of the authority of the Commission to legislate the rates, is provided by the statute cited above. We do not read into the chancellor’s decision, whether ultimately affirmed herein or not, any undertaking to substitute himself in place of the Commission, but find that he confined himself to the duty and authority specifically reserved to him. This assignment lacks merit, in our opinion.

In addition to MPCo officials well versed in its finances and financial needs, MPCo had the testimony of Dr. Langum. The one witness of the Commission was Dr. Bicksler. Both these financial economists, by their testimony and credentials, appear to be giants in the field of large finance economics.

Dr. Langum testified as to the increased finances needed by MPCo from the comparative earnings approach, laid down in Bluefield Waterworks and Improvement Co. v. Public Service Comm. of West Virginia, 262 U.S. 679, 43 S.Ct. 675, 67 L.Ed. 1176 (1923), and Federal Power Comm. v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1943), and followed recently in Mississippi Power Co. v. Mississippi Public Service Comm., 1974, supra.

Dr. Langum used in his rate base original cost without “flow through” which he explained as meaning normalizing tax deferrals from accelerated depreciation and amortizing the investment tax credit to income over the service life of the property.

Dr. Bicksler was retained by the Commission staff for what to us appears to be a restricted assignment, set out in this testimony on cross examination:

Q. You state, quote “the absolute upper limit to the fair rate of return for Mississippi Power Company is 8.44 percent.”, do you not?
A. Yes.
Q. To what rate base do you apply that rate of return in order to determine the number of dollars of revenue for Mississippi Power Company?
A. That question is outside the bounds of my testimony. My testimony is narrowly confined to two issues: one, estimating a fair rate of return; two, a few brief comments on rate structure. Furthermore, I have not given that question sufficient rigorous thought to come up with or present a meaningful answer.
Q. Then you have no idea as to the number of dollars of revenue you are recommending for Mississippi Power Company, do you?
A. As I indicated, I have not given that question sufficient rigorous thought to come up or present a meaningful answer. ...

(Emphasis added).

The expert evidenced very little awareness of finances of MPCo, and found it not needful or an important element in his tes[660]

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Bluebook (online)
366 So. 2d 656, 1979 Miss. LEXIS 2204, 1979 WL 396362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mississippi-public-service-commission-v-mississippi-power-co-miss-1979.