State v. Public Service Commission

829 S.W.2d 515, 1992 Mo. App. LEXIS 364
CourtMissouri Court of Appeals
DecidedMarch 10, 1992
DocketNos. WD 44324, WD 44488
StatusPublished
Cited by1 cases

This text of 829 S.W.2d 515 (State 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.

Bluebook
State v. Public Service Commission, 829 S.W.2d 515, 1992 Mo. App. LEXIS 364 (Mo. Ct. App. 1992).

Opinions

TURNAGE, Presiding Judge.

Licata, Inc., filed a complaint with the Public Service Commission against The Kansas Power and Light Company, Inc., concerning gas service for the Heart Mobile Village operated by Licata in Kansas City. The Commission dismissed the complaint and on appeal to the circuit court, the court reversed the Commission’s decision. On this appeal, the Commission, KPL, and Public Counsel contend that the court erred because the Commission’s decision was correct and properly supported. Reversed and remanded.

Licata is the owner and operator of a mobile home court known as Heart Mobile Village which consists of approximately 425 mobile homes. Prior to April, 1988, Licata received all natural gas for itself and each mobile home from KPL through a master meter (that is, a single meter located at the point where the gas entered the Licata property). Licata resold the natural gas delivered by KPL to the master meter to each of its mobile home tenants through a distribution system and individual meters located at each mobile home. Licata owned the distribution system and the individual meters.

On May 14, 1985, Article 10 of KPL’s General Terms and Conditions for Gas Service Tariffs became effective after approval by the PSC. This article sets out terms and conditions of gas service to Mobile Home Courts. Article 10 was approved by the PSC after notice to all mobile home court owners, including Licata, and a hearing in which some of the owners participated. Although Licata acknowledged notice of the hearing, it did not participate. Under Article 10 all mobile home court distribution systems were required to be brought into a safe condition according to KPL specifications in order to receive gas from KPL. Further, Article 10 required a mobile home court with a master meter installed prior to May 14, 1985, such as Licata, to provide meter set piping and space for individual meters to be placed at each mobile home pad by KPL. Article 10 further prohibited the resale of gas delivered to the master meter and provided that KPL would bill each mobile home for the gas delivered through its individual meter. If the master meter remained in place, the mobile home court owner would be billed for the difference between the sum of the individual meter usage and the master meter usage.

In June, 1986, KPL notified Licata that pursuant to Article 10 KPL was to install KPL meters for each of Licata’s tenants by October 31, 1986, and that Licata would be responsible to provide the meter locations and piping required for each meter. Article 10 required Licata to pay the expenses for bringing its distribution system up to [517]*517KPL specifications and to provide the individual piping necessary for each pad meter. Article 10 provided for a refund to Licata over a period of time for its costs. KPL further advised Licata in June, 1987, that unless Licata had performed the necessary work for individual pad meters to be set by July 31, 1987, that KPL would be forced to discontinue gas service.

In December, 1987, and January, 1988, Licata installed an LP gas storage and aeration system capable of providing all of the gas requirements for the court.

In February, 1988, Licata requested KPL to enter into a contract for gas service to be supplied to Licata at KPL’s Large Commercial Service (LCm) rate. This rate is available on an interruptible basis to customers whose gas requirements at a single address or location exceed 3,000 Mcf in any one month of a twelve month billing period. Licata’s requirements, when the gas used by each mobile home was included, met the 3,000 Mcf requirement. Licata also requested KPL to provide transportation of gas owned by Licata pursuant to KPL’s Interim Commercial Gas Transportation Service (LCTm) rate. This rate is available for transportation of natural gas owned by Large Commercial Service customers.

KPL denied Licata’s request for natural gas service under the LCm rate on the ground that it could only serve Licata under Article 10 and that Licata was not in compliance with that Article.

KPL further stated that if Licata were in compliance with Article 10 its natural gas requirements would no longer reach the 3,000 Mcf minimum because KPL would be selling gas directly to Licata’s tenants and Licata would only be purchasing the difference between the sum of the pad meters and the reading on the master meter.

In March, 1988, Licata filed a complaint against KPL with the PSC seeking an order to require KPL to sell Licata natural gas under the LCm tariff and to transport Licata’s own natural gas under KPL’s LCTm tariff.

When Licata refused compliance with Article 10, KPL terminated services to Licata in April, 1988, and has not provided gas service to Licata since that time. Licata now serves its tenants with LP gas.

In August, 1988, the PSC issued its Report and Order by which it dismissed Lica-ta’s complaint because Licata operated a mobile home court and it was subject to KPL’s Article 10. Because Licata did not comply with Article 10, neither the LCm tariff nor the LCTm tariff would apply.

Although the circuit court reversed the order of the PSC, this court reviews the decision of the Commission and not the judgment of the circuit court. State ex rel. City of St. Joseph v. Pub. Serv. Com’n, 713 S.W.2d 593, 595[1] (Mo.App.1986).

Although denominated the respondent, Licata actually occupies the position of an appellant because it seeks to overturn the order of the PSC. Licata contends that the Commission’s order finding that Licata could not qualify for LCm rates for natural gas because of Article 10 is unreasonable because Article 10 is unconstitutional and invalid as applied to Licata. Licata further contends that the order upholding KPL’s refusal to provide transportation of Lica-ta’s own gas is unreasonable because Article 10 applies only to natural gas supplied by KPL and not to that owned by Licata and only transported by KPL.

Licata levels a number of constitutional arguments against Article 10, including due process, appropriation of private property for public use without the payment of just compensation, and the impairment of the obligation of contracts. It is not necessary to address these constitutional arguments because Article 10 was approved by order of the PSC in 1985. After notice was given to all mobile home court owners including Licata, and a hearing was held, the PSC issued its order approving Article 10 on the grounds of public safety in the operation of individual distribution systems and that it was for the protection of the individual mobile home tenants to be billed directly by KPL and to have their service governed by tariffs approved by the PSC. Licata does not dispute the fact that it was given notice of the hearing in which Article 10 was approved and does not dispute the [518]*518fact that several mobile home owners participated in such hearing. Nor does Licata contend that the PSC was without jurisdiction to approve Article 10. After the hearing Article 10 was specifically approved by the PSC in its order.

Section 386.550, RSMo 1986, provides: “In all collateral actions or proceedings the orders and decisions of the commission which have become final shall be conclusive.” In State ex rel. State Highway Com’n v. Conrad, 310 S.W.2d 871

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Related

State ex rel. Mid-Missouri Telephone Co. v. Public Service Commission
867 S.W.2d 561 (Missouri Court of Appeals, 1993)

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Bluebook (online)
829 S.W.2d 515, 1992 Mo. App. LEXIS 364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-public-service-commission-moctapp-1992.