Central Kansas Telephone Co. v. Kansas Corp. Commission , 153 Kan. 597 ( 1941 )

The opinion of the court was delivered by

AlleN, J.:

The Coffey County Rural Electric Cooperative Association (hereinafter referred to as the rural electric) filed for approval with the state corporation commission plans, specifications and maps showing the location of a proposed power line. A hearing was had on the application, and thereafter on the petition of the Central Kansas Telephone Company, Inc. (hereinafter referred to as the telephone company), a rehearing was granted by the commission. Testimony was taken, the commission made' findings of fact, and duly entered an order approving the application of the rural electric — the construction to be in accordance with the rules of the commission set forth in docket No. 1944. The telephone company appealed from the order of the commission to the district court of Coffey county. Upon the trial in the district' court a judgment was entered holding the order of the commission was unlawful and remanding the case to the commission with directions “to promulgate reasonable rules and regulations covering inductive coordination and thereafter reconsider the application of appellee in the light of regulations covering inductive coordination.” This appeal is from the order and judgment of the district court so entered.

The commission found that the rural electric was incorporated under the laws of Kansas for the purpose of furnishing electric energy to its stockholder members; that the construction of its facilities is financed by the United States through the Rural Electrification Administration; that the United States has a first mortgage on the property of the company to secure the cost of construction, and that the proposed lines of the rural electric will run along the highways of the state upon which are located lines of the telephone company. The telephone lines are grounded lines and will give service substantially equal to that given on metallic circuits unless there is electric interference from some source. It was further found that the lines of the rural electric if constructed according to the plans, specifications and maps will cause inductive interference with the service of the telephone company, and will materially impair such service and may render the telephone lines noncommercial; whether it will do so cannot be determined with certainty prior to the energizing of the power lines, but it is probable that it will do so. It was found that if the telephone lines which parallel the power lines are metallicized, the inductive interference will be greatly reduced if not entirely eliminated; that the expense of metallieizing the telephone lines will amount to about |7,000, and that it is not the policy of the Rural Electrification Administration to furnish money for that purpose.

Our statute G. S. 1935, 66-183, provides:

“All public utilities owning or operating wires for the transmission of telegraph or telephone messages or for the transmission of electricity upon, along, or across the streets, highways or public places in this state are required to so use, string and maintain such wires as to avoid unreasonable injury or interference from the wires of other utilities and to avoid unreasonable injury to and interference with the wires of other utilities, and the public utilities commission is given the power, and it is hereby made its duty, to prescribe reasonable rules and regulations with respect to the stringing and maintaining of wires in all cases whel'e there is danger or possibility of unreasonable interference with or damage to the wires or service of one utility by those of another utility. . . .”

After quoting sections 66-183 and 66-184, the commission, in its findings, states:

“The question thus presented is: Does the commission have the power under the statutes quoted to refuse the approval of the plans of a power company for the construction of a transmission line across and,along the highways of the state when the proposal is to construct the line in such manner that it will cause inductive interference to an extent that it will render grounded rural telephone lines constructed thereon noncommercial? . . .

“The commission is impressed with the argument of the protestants based upon the equities in the case, but it is reluctant to hold that the words ‘or service’ in the statutory provision just quoted are sufficient to confer upon the commission authority to deny the application on account thereof). No one can study the provisions of the statute involved with any feeling of assurance at the end that he has chosen the right path. There are few precepts to guide the commission. All the more, in this uncertainty, the commission is impelled to the belief that, until the courts have determined the matter, the commission should not assume the power. The commission holds as a matter of law that it may not withhold approval of the plans of the applicant for the reasons urged by the protestants.”

On appeal to the district court it was contended that the order of the commission was unreasonable and unlawful. The district court, in a carefully written opinion in disposing of the question as to whether the order was unreasonable, stated that “the decision of the commission as disclosed by the order is not so wide of the mark as to be outside the realm of fair debate, and therefore this court has no right to nullify the order on the ground that it was unreasonable.”

The court ruled:

“The order of the commission is set aside as unlawful and case is remanded to commission with direction to promulgate reasonable rules and regulations covering inductive coordination and thereafter reconsider the application of appellee in the light of regulations covering inductive coordination.”

In arriving at this conclusion, the district court, in its written opinion, stated:

“Applying the foregoing rules of construction to 66-183, G. S. 1935, this court interprets the statute to mean:

“ ‘That it is the duty of the State Corporation Commission to prescribe reasonable rules and regulations with respect to the‘stringing and maintaining of wires by all public utilities owning or operating wires for the transmission of electricity or telephone messages upon, along or across the highways in this state in all cases where there is danger or possibility of unreasonable interference with or damage to the wires or service of one utility by those of another utility and with respect to the support, maintenance, repair and reconstruction thereof.

“ ‘That the language “unreasonable interference with or damage to the service of one utility by the electrical wires of another utility,” is broad enough to cover and does cover “inductive interference” caused by the maintenance of an electrical transmission line paralleling the telephone lines upon, along or across public highways in this state.

“ ‘While the telephone company has no exclusive right of occupancy to the highways under its franchise yet, appellee must so construct its electric transmission lines, under rules promulgated by the commission, that no unreasonable inductive interference to service of telephone company will be caused, if that can be done within the bounds of reasonable regulations.

“ ‘In case the interference may be avoided by installation of- devices or other means with reasonable expense, it is the duty of the later company to adopt such means as the commission may direct, for the service of telephone customers is just as important as electric service is to electricity customers and it is just as logical to require the use of these devices by appellee on its lines as it is to require the telephone company to do so at its own expense, as following, either line of reasoning it will mean added expense to the consumers of utility service.

“ ‘However, under any line of reasoning it is the commission’s duty, in the first instant, to adopt regulations that will avoid unreasonable inductive interference if it is reasonably possible to do so.

“ 'Upon oral argument before the court, counsel for all parties interested in this appeal stated that the wire stringing rules promulgated by the State Corporation Commission, pursuant to the statute, and as disclosed by docket 1944 of the commission, which the court has examined, did not cover, and do not now cover “inductive interference” but merely physical interference. . . .

“ ‘It must be here noted it is not a question of the power of the commission to refuse to approve the application of appellee, but rather the power of the commission to regulate by rule interference with the service of one utility by the wires of another utility, caused by inductive interference or otherwise. . . .

“ ‘The findings of the commission which are accepted by the court, by agreement of counsel, as the facts of the case, show further that the lines of the appellee, as proposed to be constructed, will cause “inductive interferencé” to such an extent that the telephone service may be and will likely-be rendered noncommercial, and that other lines constructed by appellee in Coffey county have destroyed the commercial value of telephone lines.

“ ‘It appearing to this court that the statute in question requires the State Corporation Commission to enact reasonable rules and regulations which would cover “inductive interference'’ and that not having been done, the commission has not followed the procedural forms prescribed by the statute (66-183, G. S. 1935) and by reason thereof the order made by the commission is unlawful.’ ”

The journal entry of the judgment recites:

“Now, on this 1st day of July, 1940, being fully advised in the premises, the court finds: That the findings of fact made by the State Corporation Commission of the state of Kansas on the 21st day of February, 1940, in the said order from which an appeal was taken by the appellant, the Central Kansas Telephone Company, Inc., are supported by substantial and competent evidence, and are reasonable.

“That the provisions of section 66-183, G. S. for 1935, authorize, empower and direct the State Corporation Commission to prescribe reasonable rules and regulations with respect to the stringing and maintaining of wire in all cases where there is danger or possibility of unreasonable interference to the service of one utility by the lines of another; that electric transmission companies are bound by the provisions of law to so construct their electric transmission lines, under rules promulgated by the commission, that no unreasonable inductive interference to service of telephone companies will be caused, if such interference can be reasonably avoided or mitigated.

“That the conclusions of law made by the said commission upon the findings of fact, herein determined to be reasonable, are unlawful in that the same erroneously conclude that the said commission has no authority to prescribe rules and regulations for the prevention of unreasonable interference with or damage to the service of telephone utilities by the lines of electric transmission utilities traversing the same highways. That in so concluding the said commission has failed to carry out the duties imposed upon it by law in regard to such unreasonable interference to service; and the court further finds that the conclusions of law made by the said commission are unlawful in that the commission has not followed the procedural forms prescribed by the statute (Sec. 66-183, G. S. for 1935) by virtue of its failure to promulgate rules and regulations with respect to the stringing and maintaining of wires in all cases where such unreasonable interference is imminent.

“That by reason of the unlawfulness of the action of the commission, the said order should be vacated and set aside insofar as the said conclusions of law are concerned.”

Did the district court err in holding the order of the commission was unlawful?

Under our statute G. S. 1935, 66-183, the commission “is given the power, and it is hereby made its duty, to prescribe reasonable rules and regulations with respect to the stringing and maintaining of wires in all cases where there is danger or possibility of unreasonable interference with or damage to the wires or service of one utility by those of another utility. . . .” The trial court held this language is broad enough to cover inductive interference caused by the maintenance of an electrical transmission line paralleling the telephone lines upon, along or across public highways in this state.

In all cases where there is danger or possibility of unreasonable interference with or damage to the wires or service of one utility by those of another utility not only is the power conferred, but a duty is imposed upon the commission to prescribe reasonable rules and regulations with respect to the stringing of wires on and along the highways. The duty imposed is imperative. While the findings of the commission recite that the proposed lines of the rural electric will be constructed in accordance with the rules of the commission as published in docket No. 1944, it does not state the rules as promulgated cover the matter of unreasonable interference with the “service” of one utility by another utility that may result from the stringing of wires upon, along or across the highways of the state. We agree with the conclusion of the district court that interference of the “service” as used in the statute is broad enough to include inductive interference. Because the rules were not formulated on that question as provided by the statute, the district court held the order of the commission was unlawful. In that ruling we concur. We think it clear the mandate of the statute was not followed. We think the rules as to inductive interference should be formulated before a lawful order on the application of the rural electric could be entered. Should such rules be formulated as contemplated by the statute, and the application should thereafter be presented, we, of course, do not intimate the nature of the ruling or order of the commission that should be made thereon — that is a duty imposed on the commission.

The decision in this case neither involves nor implies any determination of the question of whether a telephone company which has operated what is ordinarily, called a grounded system has thereby acquired any vested right in such use of the earth as part of the circuit, or is entitled to any superior or prior right by virtue of such prior use. No question is now before us as to whether the power line companies should be required to bear part or all of the cost of me-tallicizing present grounded telephone systems in ease other means of preventing inductive interference prove ineffective, nor whether the power lines should be required to install devices in addition to those now required in order to prevent injury to the telephone service. Such administrative questions are not raised by this proceeding. We are in no way here determining how far the commission may constitutionally go nor assuming to say how far it should go, in performing its administrative duties, in relation to such use of the earth in connection with the problem of inductive interference. We are simply holding, with the trial court, that under the statute the commission has full authority to deal with problems of service which include the problem of inductive interference, and that it has both the power and the duty to adopt and promulgate reasonable rules and regulations relative thereto. The commission itself does not contend that its present general rules and regulations which make reference, largely descriptive in character, to inductive interference, deal adequately with the subject. On the contrary, it was the view of the commission that it was without power to adopt rules and regulations dealing fully with that problem. If the commission had said that its present rules and regulations are as specific and go as far as it is practicable to go, either from a scientific or a practical standpoint, for the purpose of preventing or minimizing inductive interference, a different situation would be here presented. That, however, is not the commission’s position. Its interpretation of the statute is that it is without power to adopt rules and regulations which fully meet the situation. In upholding the opinion of the trial court that the commission has not correctly interpreted its power under the statute, we are neither expressing nor implying what sort of regulations should be adopted with reference to the subject, or otherwise assuming to determine its administrative action.

The judgment is affirmed.

Wedell, J., concurs in the result.