Perry v. City of Monroe

360 So. 2d 1352, 1978 La. App. LEXIS 2870, 1978 WL 391783
CourtLouisiana Court of Appeal
DecidedJune 5, 1978
DocketNos. 13585, 13586 and 13587
StatusPublished
Cited by1 cases

This text of 360 So. 2d 1352 (Perry v. City of Monroe) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perry v. City of Monroe, 360 So. 2d 1352, 1978 La. App. LEXIS 2870, 1978 WL 391783 (La. Ct. App. 1978).

Opinion

HALL, Judge.

In these three consolidated actions, plaintiff, a resident and elector of the city of Monroe, challenges the validity of four propositions approved by the electors at special elections held on July 9, 1977. The propositions were submitted to the electors pursuant to a plan of the Monroe Commission Council to transfer the operation, and eventually ownership, of the municipally-owned electric power and light system to Louisiana Power & Light Company. From judgments dismissing the three actions, plaintiff appealed.

Background Facts

The city of Monroe has owned and operated its own electric power generating and distribution system and its own water system for many years. Management of the systems has been vested in the City of Monroe Utilities Commission since 1956.

Expansions and improvements to the electrical and water systems have been financed through revenue bonds issued at various times pursuant to authorization of the qualified electors of the city, without designation of the amounts to be used for each system. The amount of revenue bonds currently outstanding is approximately $32,000,000.

The city’s electric power plant consists of four currently operable generating units, the largest of which was added in 1968. All units were designed to operate on natural gas but can be operated for short periods of time on fuel oil, which is more expensive and less efficient than natural gas.

In January 1973, as a result of the energy crisis, the Federal Power Commission entered orders curtailing the use of gas as fuel for generating electricity. With interstate gas no longer available to meet its needs the city was required to seek sources of intrastate gas for its gas supply. In 1976 the city’s requirements for natural gas during peak periods in the summer months amounted to approximately 23,000,000 cubic feet per day, but the city had firm contracts for only approximately 3,000,000 cubic feet per day. Natural gas was obtained from suppliers on an “if available” basis. Fuel oil was used to supplement the available gas supply.

Due to the increased regulation of natural gas, the increase in price, and the uncertainty of its supply, the city abandoned plans to construct additional gas-fired generating units. As a consequence the generating capacity has been unable to keep pace with the increased demand for electricity. It is considered essential for safety reasons that “firm capacity” (the amount of power which a generating plant is capable of producing with its largest unit out of service) should always exceed “peak load” (the highest demand at any given time by customers [1356]*1356of the system). Peak load exceeded firm capacity in the summers of 1976 and 1977 and, considering normal increases in the growth of electrical power consumption, peak load will exceed firm capacity frequently by 1980.

In July 1976 an energy committee was appointed to study the energy needs of the city and to make recommendations concerning those needs. The committee commissioned the engineering firm Ford, Bacon & Davis Construction Corporation to make a study of the problem and to recommend a course of action which would assure the city a dependable source of electricity at competitive prices. The study was made and a report submitted on October 4, 1976. The report concluded that Louisiana Power & Light Company, which provides electrical service to much of the area near Monroe, was the best source of dependable electricity for the city and recommended that negotiations be undertaken for a sale, lease or other disposition of the entire system to LP&L. Pursuant to negotiations LP&L, in April 1977, proposed an operating agreement by which it would assume operation of the city’s electric system. Under the proposed agreement LP&L is required to operate and maintain the city’s electric distribution system, with the option to operate the city’s generating plants; to provide for the entirety of the electric power supply requirements of the city and its consumers; to make necessary improvements and extensions to the system; to maintain insurance on the system; to pay the bonded indebtedness attributable to the electric system, with the city obligated to pay the bonded indebtedness attributable to the water system; and to pay to the city 2 percent of monthly revenues from the sale of commercial and residential electric services or a minimum of $700,000 annually. The city is prohibited from granting anyone else a franchise, from issuing additional electric revenue bonds, and from selling or mortgaging the electric system. The city shall not have the power to regulate rates within or without the city and the regulatory power shall be surrendered to the Louisiana Public Service Commission without right to reinvest during the franchise period. LP&L is granted a 60-year franchise with an option to purchase the electric utility system when the outstanding bonds are paid. The agreement specifically provides that it is not a sale or lease as long as the existing bonds are outstanding. Rates to be charged the consumers are to be those rates presently being sought by LP&L before the Public Service Commission pending final approval; thereafter, all rates are to be regulated by the Public Service Commission. The agreement provides for and contemplates, but does not require, the issuance of refunding revenue bonds in order to retire the currently outstanding bonds.

Constitutional and statutory provisions required that several aspects of the proposed agreement be submitted to the electorate for approval. Since the agreement provided for a 60-year franchise and possible ultimate sale of the city’s utility to LP&L, Proposition No. 11 was submitted to the electorate pursuant to R.S. 33:4341, et seq. Since the agreement provided for investing of supervision, regulation and control in the Louisiana Public Service Commission, Proposition No. 22 was submitted to the electorate pursuant to La.Const. art. 4, § 21(C) and R.S. 33:4491, et seq. Addi[1357]*1357tionally, Proposition No. 43 was submitted to the electorate in a separate election. Proposition No. 34 authorizing the issuance of refunding bonds was placed on the ballot pursuant to the requirements of R.S. 33:4251, et seq.

All four propositions were overwhelmingly approved (7 or 8 to 1) by a substantial majority of the electors voting in the July 9, 1977 election.

Exceptions of Peremption and No Right of Action

The trial court sustained an exception of peremption in the suit attacking the proposition authorizing issuance of refunding bonds and dismissed the suit, based on plaintiffs failure to timely comply with the provisions of the Bond Validation Law, R.S. 13:5121, et seq., governing such actions. Although plaintiff appealed from this judgment, no specification of error on appeal is directed to the judgment dismissing that suit and the correctness of that judgment will not be considered by this appellate court. See Rule IX-A, Uniform Rules of the Courts of Appeal, effective December 1, 1977. It is noted, however, that the same grounds of illegality urged in that suit are also urged in the suit attacking the operating agreement, which contains provisions relating to the issuance of the refunding bonds, and will be discussed in that context.

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Related

Perry v. City of Monroe
362 So. 2d 583 (Supreme Court of Louisiana, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
360 So. 2d 1352, 1978 La. App. LEXIS 2870, 1978 WL 391783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-city-of-monroe-lactapp-1978.