State ex rel. Union Electric Co. v. Public Service Commission

770 S.W.2d 283, 1989 Mo. App. LEXIS 337, 1989 WL 21138
CourtMissouri Court of Appeals
DecidedMarch 14, 1989
DocketNo. WD 41154
StatusPublished
Cited by3 cases

This text of 770 S.W.2d 283 (State ex rel. Union Electric Co. v. Public Service Commission) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State ex rel. Union Electric Co. v. Public Service Commission, 770 S.W.2d 283, 1989 Mo. App. LEXIS 337, 1989 WL 21138 (Mo. Ct. App. 1989).

Opinion

GAITAN, Judge.

This is an appeal by Union Electric Company (Union Electric) from a final order of the Public Service Commission (Commission) in Case No. EC-87-71 which was affirmed by the Cole County Circuit Court, Judge Lawrence 0. Davis, Special Judge. In its Report and Order, the Commission ordered Union Electric to cease and desist service to a state-owned traffic control signal from Union Electric’s existing electric line. The Commission determined that Cuivre River Electric Service Company (CRESCO), complainant below, was the proper party to serve the signal. We affirm.

This case was submitted to the Commission on an agreed stipulation of facts. The pertinent facts to this appeal are as follows. In 1952, St. Charles County granted Union Electric a perpetual franchise. In 1956, the Commission granted Union Electric a certificate of convenience and necessity to construct a line adjacent to U.S. Highway 40/61 in St. Charles County. When the Commission issued this order, the area was not within the boundaries of any incorporated municipalities. In 1975, the City of Lake Saint Louis was incorporated. In 1985, the City of Lake Saint Louis granted CRESCO a municipal franchise.

In 1986, the Commission granted CRES-CO a certificate of convenience and necessity for the area of the City of Lake Saint Louis. The corporate limits of this City include the intersection of U.S. Highway 40/61 and Prospect Road. In 1986, the Missouri Highway Department asked Union Electric to service an electric traffic control signal located one hundred forty (140) feet from Union Electric’s certified line adjacent to Highway 40/61. Union Electric maintains electric transmission and distribution lines along Highway 40/61 pursuant to a line certification granted to Missouri Edison Company in Case No. 12,485 and as modified in Case No. 13,170. In December 1986, CRESCO filed the underlying complaint before the Commission. In September 1987, the Commission ordered Union Electric to cease and desist service to the signal. The Commission subsequently denied Union Electric’s request for a rehearing.

On review, this Court is to determine whether the Public Service Commission’s Report and Order was lawful and, if so, whether it was reasonable. State ex rel. Utility Consumers Council of Missouri, Inc. v. Public Service Commission (UCCM), 585 S.W.2d 41, 47 (Mo. banc 1979). The lawfulness of the Commission Order depends on whether there exists statutory authority for its issuance. State ex rel. Gulf Transport Company v. Public Service Commission, 658 S.W.2d 448, 452 (Mo.App.1983). As to matters of reasonableness, the courts cannot substitute their judgment for that of the Public Service Commission if the Commission’s decision is supported by substantial and competent evidence on the record as a whole. UCCM, 585 S.W.2d at 47 (citing State ex rel. National Trailer Convoy, Inc. v. Public Service Commission, 488 S.W.2d 942, 944 (Mo.App.1972)). A decision or Order of the Commission can be set aside only when it is clearly contrary to the overwhelming weight of the evidence. State ex rel. Egan v. Public Service Commission, 319 S.W.2d 917, 919 (Mo.App.1959). A Public Service Commission Order is presumed valid and the burden is on the party attacking it to prove its invalidity and/or abuse of Commission discretion. UCCM, 585 S.W.2d at 47.

Union Electric states that the sole issue on appeal involves priority of rights pursuant to certificates of convenience and ne[285]*285cessity. Two types of certificate authority are contemplated in Missouri statutes. Section 393.170.1, RSMo 1986 sets out the requirement for authority to construct electrical plants. This is commonly referred to as a line certificate and is what Union Electric held in the instant case. Subsection 2 sets out the requirement for authority to serve a territory which is known as an area certificate. § 393.170.2, RSMo 1986. This is the type of authority held by CRES-CO and which typically has been the principal vehicle for saturating a geographically defined area with retail electric service. In years past it was not uncommon for a utility like Union Electric to service communities by area certificate authority while holding line certificate authority to build transmission lines connecting those towns like a series of pockets of retail service.

Retail service extensions from certified lines developed over time as a sensible accommodation which served the utilities interest in plant efficiency while also serving the Commission interest in avoidance of line duplication. The Commission acknowledges in Case No. 12,485 that this particular line was to constitute the backbone of Missouri Edison Company transmission system which at 69,000 volts would be able to serve, for emergency and standby purposes, the northern part of its properties as far as Louisiana from its interconnection with Union Electric Company.

Without discussion, the Commission there allowed Missouri Edison (Union Electric’s predecessor in interest) to underbuild the high voltage transmission line with lower voltage lines from which individual services could be run without the benefit of a high voltage substation. There is nothing to suggest that the underbuild was more than ancillary to the primary goal of moving electricity at high voltage over a substantial distance.

On its face, line certificate authority described under subsection 1 of section 393.-170 carries no obligation to serve the public generally along the path of the line. The elements of proving the public necessity of a line are different from the test applied to proving the public necessity of area certificate authority. That difference is reflected in the distinct rules for each promulgated by the Commission at 4 CSR 240-2.060(2). Union Electric now argues that the distinction has been so blurred that the two types of authority should be considered interchangeable.

It is understandable that the distinction between an area and line certificate has been unclear given the historical development of utility law in Missouri and the Commission’s guiding purpose, among others, of avoiding duplication of electrical distribution facilities. In Cuivre River Electric Cooperative, Inc. v. Missouri Edison Co., 7 Mo. PSC (N.S.) 118 (1956), the Commission established the precedent for allowing reasonable extensions from certificated lines for reasonable purposes where no other regulated utility service was available. Id. at 120. Under similar circumstances in Re Diekroeger, 9 Mo. PSC (N.S.) 127 (1959), the privilege of making reasonable extensions was raised to the level of a duty to serve within the utility’s professed service area. Id. 139-40. The common denominator in both instances was the existence of unregulated competition for customers from a Chapter 394 rural electric cooperative. Despite these accommodations the basic rule remains that the Commission must deal with the utility and the affected public within the framework of authority sought by the utility and granted by the Commission after applying the scrutiny of proper administrative processes.

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770 S.W.2d 283, 1989 Mo. App. LEXIS 337, 1989 WL 21138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-union-electric-co-v-public-service-commission-moctapp-1989.