City of Southaven, Mississippi v. 4-County Electric Power Association ( 2002 )


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  •                        IN THE SUPREME COURT OF MISSISSIPPI
    NO. 2004-CA-00577-SCT
    CITY OF STARKVILLE
    v.
    4-COUNTY ELECTRIC POWER ASSOCIATION
    DATE OF JUDGMENT:                           09/20/2002
    TRIAL JUDGE:                                HON. ROBERT L. LANCASTER
    COURT FROM WHICH APPEALED:                  OKTIBBEHA COUNTY CHANCERY COURT
    ATTORNEYS FOR APPELLANT:                    MARC DARREN AMOS
    DEWITT T. HICKS, JR.
    WILLIAM DEAN STARK
    ATTORNEYS FOR APPELLEE:                     DAVID L. SANDERS
    JEFFREY JOHNSON TURNAGE
    NATURE OF THE CASE:                         CIVIL - OTHER
    DISPOSITION:                                AFFIRMED - 03/24/2005
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    BEFORE WALLER, P.J., EASLEY AND CARLSON, JJ.
    CARLSON, JUSTICE, FOR THE COURT:
    ¶1.    The City of Starkville has appealed the Oktibbeha County Chancery Court’s entry of a
    final judgment dismissing its complaint with prejudice.       En route to granting summary
    judgment in favor of 4-County Electric Power Association, the chancellor ruled, inter alia, that
    the City’s right to purchase the power company’s distribution facilities and service rights
    created under a 1963 Service Area Agreement was non-existent due to the City’s failure to
    seasonably petition the Mississippi Public Service Commission for approval of its contract,
    thus rendering the contract unenforceable.            Finding the chancellor’s dismissal to be consistent
    with well established law, we affirm.
    FACTS AND PROCEEDINGS IN THE TRIAL COURT
    ¶2.     In 1934, the Mississippi Legislature passed the Municipally Owned Utilities Act, which
    gave our states’ municipalities autonomous control over the operation and improvement of
    their individual public utility systems.     Accordingly, an era began whereby municipalities were
    given the exclusive power to either provide electrical service themselves or, in the alternative,
    designate who would provide the city with service. 1934 Miss. Laws ch. 317 (now codified in
    Miss. Code Ann. §§ 21-27-11 et seq. (1972)). In utilizing the 1934 utilities act, municipalities
    routinely extended franchise agreements to third-party providers, thus granting them the use
    of the streets, alleys and public ground. Miss. Code Ann. § 21-13-3 (1972). Typical of the era,
    the citizens of the respective municipalities ultimately governed the quality of their own
    service as ordinances granting franchises were generally required to be approved by a majority
    of the qualified electors of each municipality. 
    Id. ¶3. In furtherance
         of   municipal     autonomy,       the   Mississippi   Legislature   passed The
    Municipal Electric Plant Law of 1936 (now codified in Miss. Code Ann. §§ 77-5-401 et seq.
    (1972)), which authorized municipalities to acquire, operate, and maintain electric plants
    within or without the corporate limits, without any restriction or limitation of other laws, and
    to provide electric power and energy to consumers. Importantly, this law conferred upon the
    municipalities the unique power of eminent domain in order to implement the purposes of the
    statute. Miss. Code Ann. § 77-5-441 (1972).
    2
    ¶4.    In 1956, the Mississippi Legislature enacted the Public Utilities Act. 1956 Miss. Laws
    ch. 372, §§ 1-40 (1956), codified in Miss. Code Ann. §§ 77-3-1, et seq. The 1956 Public
    Utilities Act empowered the Mississippi Public Service Commission (“MPSC”) with the
    exclusive authority to regulate public utilities in designated non-corporate areas.    This Act
    likewise empowered the MPSC with the authority to issue certificates of public convenience
    and necessity.   Additionally, the 1956 Act “grandfathered in” all existing utility service being
    provided according to the franchise agreements and conferred administrative power to the
    MPSC over all such future agreements.         Also, under the 1956 Act all utilities seeking a
    franchise, whether corporate or non-corporate, were required to obtain a certificate of public
    convenience and necessity from the MPSC.              However, while the Act created new
    administrative powers in the MPSC, this power was exclusive of the state’s municipalities.     In
    this regard, municipalities expressly retained the power to acquire, purchase, negotiate or
    condemn the facilities of any utility desiring to serve within their corporate limits. 1956 Miss.
    Laws ch. 372 § 5(e), codified at § 77-3-17.
    ¶5.    On December 31, 1963, the City of Starkville (Starkville) and 4-County Electric Power
    Association (4-County) entered into a service area agreement (1963 Agreement). Consistent
    with the 1956 Public Utilities Act, the 1963 Agreement guaranteed efficient continued utility
    service to the local polity if Starkville subsequently decided to annex territory which was
    within 4-County’s designated service area. The 1963 Agreement was contingent upon the right
    of municipalities to annex land which was certificated by the MPSC, and the Agreement
    provided that if Starkville exercised its right to include territory currently in the 4-County
    3
    service area via its power of eminent domain, then, in lieu of condemnation proceedings,1
    Starkville could either grant 4-County a no-cost twenty-year franchise to continue operating
    within the newly annexed area or effectuate an outright purchase of both 4-County’s
    distribution facilities and its service rights.     The relevant provisions of the 1963 Agreement
    stated:
    In the event Municipality at any time or from time to time changes the location
    of its corporate boundaries in such manner as to enclose within said boundaries
    an area of service, distribution facilities and/or consumers of Cooperative,
    Municipality shall, within one-hundred twenty (120) days after annexation
    becomes effective, elect either to (a) grant Cooperative a franchise without cost
    to serve all present and future electric consumers within said annexed area for
    a period of twenty (20) years or (b) buy all of Cooperative's service rights and
    the associated distribution facilities within the annexed area, with such
    exceptions as may be agreed upon by the parties. If Municipality elects to buy,
    it shall be obligated to purchase, and Cooperative shall be obligated to sell to
    Municipality, said service rights and facilities at a fair value determined as
    hereinafter provided.
    The 1963 Agreement further provided:
    [I]n order to avoid wasteful duplication of facilities and uneconomic service to
    ultimate consumers, Municipality and Cooperative desire to establish clearly
    defined arrangements and procedures which will permit continued service to
    their respective present consumers and the future expansion of Municipality’s
    electric distribution facilities and service in areas which in the future may be
    included by annexation within its corporate boundaries......
    Additionally, both Starkville and 4-County acknowledged the role of the MPSC:
    The parties hereto mutually agree to cooperate in petitioning for and in securing
    such approval of this agreement by the Mississippi Public Service Commission
    as is or may hereafter be required by law.
    1
    Under the then-applicable Public Utilities Act of 1956, municipalities could take by condemnation
    a cooperative’s poles, power lines, equipment and rights to distribute electricity within the boundaries of the
    annexed area.
    4
    (Emphasis added).
    ¶6.     The procedure required by the 1956 Public Utilities Act remained largely intact for
    over 30 years; however, in 1987 the Mississippi Legislature significantly revised the 1956 Act
    (1987 Amendments). The focus of the 1987 Amendments was on three statutes – Miss. Code
    Ann. §§ 77-3- 13, -17, & -21 (Senate Bill 2840, ch. 353). These 1987 Amendments conferred
    further administrative authority upon the MPSC, including the power of approval over any
    determination made concerning the certificated utilities.         While a municipality retained the
    authority to regulate within its borders, its eminent domain powers were severely curtailed.2
    ¶7.     On November 7, 1994, 4-County provided Starkville with notice that it no longer
    considered the parties’ 1963 Agreement valid. Specifically, 4-County informed Starkville that
    pursuant to the Legislature’s 1987 Amendments to the 1956 Public Utilities Act, performance
    under the parties’ contract had become impossible. Two and one-half months later, Starkville,
    on January 27, 1995, annexed approximately 1.72 miles of 4-County’s certificated service area
    and informed 4-County that, pursuant to the 1963 Agreement, it intended to exercise its option
    to purchase 4-County’s service rights and associated distribution facilities located in the newly
    annexed area.     When 4-County subsequently refused to voluntarily sell its rights and property
    in the certificated area, Starkville commenced suit in the Chancery Court of Oktibbeha County
    via its filing of a complaint for specific performance, declaratory and injunctive relief and
    damages.        In due course, the chancery court granted 4-County’s motion for summary
    2
    We reviewed the 1987 Amendments in Cities of Oxford v. N.E. Miss. Elec. Power Ass’n, 
    704 So. 2d
    59 (Miss. 1997), and determined that their restrictions on a municipality’s power of eminent domain was
    constitutional.
    5
    judgment, and en route to the grant of summary judgment, the chancellor considered the
    Legislature’s 1987 Amendments and reasoned that the amendments rendered the parties’ 1963
    Agreement unenforceable as it was now unlawful to purchase a certificate of public
    convenience and necessity without MPSC approval.
    ¶8.       On January 10, 2002, this Court reversed the chancery court’s grant of summary
    judgment, finding that, notwithstanding the 1987 Amendments, the 1963 Agreement between
    Starkville and 4-County was valid and enforceable “within the bounds of the regulatory powers
    of the Public Service Commission.” City of Starkville v. 4-County Elec. Power Ass’n, 
    819 So. 2d 1216
    , 1218 (Miss. 2002) (
    Starkville I). We interpreted the 1987 Amendments as not
    specifically voiding agreements to sell such as the one existing between Starkville and 4-
    County.       We also stated that “[i]f the legislature wishes to invalidate existing contracts between
    entities delivering public utilities, it should say so plainly,” and we likewise recognized that
    this determination was directly within the purview of the Legislature as “[t]he Legislature is
    the foremost expositor of public policy.” 
    Id. at 1221. ¶9.
          Within approximately three weeks after we handed down our decision in Starkville I,
    Representative Tyrone Ellis 3 introduced a bill to amend Miss. Code Ann. § 77-3-13, with the
    stated purpose being to clarify the legislative intent in passing the 1987 amendments to the
    3
    Representative Ellis resides in Starkville and represents District 38, comprised of parts of the
    Counties of Clay, Lowndes, Noxubee and Oktibbeha.
    6
    1956 Public Utilities Act. House Bill 997 was passed on March 4, 2002 (2002 Miss. Laws,
    ch. 303, §§ 1-2 (2002 Amendments).4
    ¶10.    Upon remand to the chancery court, 4-County, not surprisingly, again filed a motion for
    summary judgment,          this   time    undergirding      its   motion    with    the    Legislature’s     2002
    Amendments.       In its motion, 4-County asserted inter alia that Starkville failed to comply with
    the 2002 Amendments and neither petitioned the MPSC nor demonstrated 4-County’s failure
    to render “reasonably adequate service” to its members in the certificated areas. See Miss.
    Code Ann. § 77-3-21. Starkville responded by inter alia challenging the constitutionality of the
    new legislation and seeking a transfer of the case to the Circuit Court of Oktibbeha County for
    a jury trial in order to determine compensatory as well as punitive damages due to 4-County’s
    intentional breach of the parties’ 1963 Agreement.5
    ¶11.    On September 23, 2002, the chancellor denied Starkville’s motion to transfer to circuit
    court and granted partial summary judgment in favor of 4-County. See Miss. R. Civ. P. 56 (d).
    En route to its grant of partial summary judgment, the chancellor analyzed and followed our
    4
    The full title of House Bill 997 was “AN ACT TO AMEND SECTION 77-3-13, MISSISSIPPI
    CODE OF 1972, TO CLARIFY THAT MUNICIPAL UTILITIES ARE NOT REQUIRED TO OBTAIN
    A CERTIFICATE OF CONVENIENCE AND NECESSITY FOR OPERATING WITHIN ONE MILE
    OF THE CORPORATE LIMITS AND THAT MUNICIPAL UTILITIES MAY NOT OPERATE IN
    AREAS CERTIFICATED TO ANOTHER UTILITY, AND TO CLARIFY THE PROCEDURE FOR
    THE ACQUISITION OF CERTAIN UTILITY PROPERTY WITHIN MUNICIPALLY ANNEXED
    AREAS; AND FOR RELATED PURPOSES.” This act took effect from and after its date of passage,
    which was March 4, 2002. It is interesting to note that this was only four days after our denial of 4-County’s
    motion for rehearing in Starkville I.
    5
    As will be discussed later in this opinion, in challenging the constitutionality of H. B. 997, Starkville
    failed to give proper notic e to the Attorney General of the State of Mississippi. See Miss. R. Civ. P. 24(d).
    7
    decision in Starkville I as well as H. B. 997, and found that the 1963 Agreement could only
    be enforceable if approved by the MPSC pursuant to the 1987 Amendments as clarified by H.
    B. 997.    The chancellor on the same day entered his partial summary judgment consistent with
    his opinion, which partial summary judgment stated in part:
    It is ordered and adjudged that [4-County] is awarded a partial summary judgment
    against [Starkville] declaring the parties’ written agreement of December 31,
    1963, is unenforceable unless the Public Service Commission shall approve the
    sale under said agreement of that portion of [4-County’s] rights and properties
    located within the portion of [Starkville] which was annexed into the said
    municipality in 1994. It is further ordered and adjudged that this cause be and
    it is hereby stayed until the parties have received a ruling by the Public Service
    Commission on the validity of the proposed sale under the said agreement.
    Instead of heeding the chancellor’s order, Starkville chose to file with the chancery court a
    motion for certification for an interlocutory appeal to this Court. On October 22, 2002, the
    chancellor denied M.R.A.P. 5 certification for an interlocutory appeal, and by order dated
    January 15, 2003 and filed with the Oktibbeha County Chancery Clerk on January 22, 2003,
    a three-justice panel of this Court denied Starkville’s petition for an interlocutory appeal.
    ¶12.    Seventy days after receiving notice of this Court’s denial of its request for an
    interlocutory appeal; 191 days after the chancellor’s grant of partial summary judgment; and,
    instead of heeding the chancellor’s directive and petitioning the MPSC for approval of the sale
    of the 1994 annexed area under the 1963 Agreement, Starkville chose instead to file with the
    chancery court a motion for the chancellor to reconsider his September 23, 2002, order
    granting partial summary judgment.           On May 20, 2003, the chancellor by order denied
    Starkville’s motion to reconsider.
    8
    ¶13.    On August 7, 2003, the chancery court sua sponte entered an order converting the
    partial summary judgment into a final summary judgment inasmuch as Starkville, after the lapse
    of a reasonable amount of time, failed to petition the MPSC for approval of the sale of the
    1994 annexed area consistent with the provisions of the 1963 Agreement.        Starkville’s appeal
    to this Court followed.
    ¶14.    Both parties set out the appropriate assignments of error using different phraseology
    and address these assignments of error in different order. However, we will restate and reorder
    these assignments of error for the sake of clarity.
    DISCUSSION
    I.      WHETHER THE CHANCERY COURT ERRED IN FAILING TO
    TRANSFER THIS CASE TO THE CIRCUIT COURT OF
    OKTIBBEHA COUNTY, MISSISSIPPI.
    ¶15.    The cases are legion where we have stated that the issue of jurisdiction is a question of
    law which we must review applying a de novo standard. Trustmark Nat’l Bank v. Johnson,
    
    865 So. 2d 1148
    , 1150 (Miss. 2004) (citing Briggs & Stratton Corp. v. Smith, 
    854 So. 2d 1045
    , 1048 (Miss. 2003); Rogers v. Eaves, 
    812 So. 2d 208
    , 211 (Miss. 2002)).
    ¶16.    Starkville asserts that this suit has now become basically a breach of contract suit
    wherein Starkville seeks to recover compensatory and punitive damages from 4-County for its
    failure to comply with the terms of the 1963 Agreement. In addressing this issue, we look first
    to Starkville’s Complaint for Specific Performance, Declaratory and Injunctive Relief, and
    Damages, which Starkville itself chose to file in chancery court (not circuit court), on April
    7, 1995, thus commencing this protracted litigation.       The prayer contained in this complaint
    9
    sought relief via the chancery court’s (1) declaring that the 1963 Agreement was valid and
    enforceable as between the parties; (2) ordering that 4-County specifically perform its
    obligations under the 1963 Agreement by way of a good faith negotiation with Starkville for
    its purchase of 4-County’s distribution and service rights within the newly annexed area; (3)
    issuing a temporary and permanent injunction thus enjoining 4-County from extending its
    distribution facilities in the newly annexed area; (4) finding that 4-County willfully and
    wrongfully breached the 1963 Agreement (thus entitling Starkville to a recovery of actual and
    punitive damages); and, (5) awarding “such other general and special relief as may be proper
    in the premises.”
    ¶17.    In its order denying Starkville’s motion to transfer this case to circuit court, the
    chancellor stated that “[s]ubject matter jurisdiction is determined from the allegations of the
    complaint.     The complaint seeks specific performance of a contract which is an equitable
    remedy.....”
    ¶18.    In Trustmark, we held that the circuit court erred in denying a motion to transfer to
    chancery court. In so doing, we readily acknowledged that most of our recently decided cases
    on the issue of transfer involved the question of whether a case commenced in chancery court
    should have been transferred to circuit 
    court. 865 So. 2d at 1152
    (citing Briggs & Stratton
    Corp.; City of Ridgeland v. Fowler, 
    846 So. 2d 210
    (Miss. 2003); United States Fid. & Guar.
    Co. v. Estate of Francis, 
    825 So. 2d 38
    (Miss. 2002)). We noted in Trustmark that the circuit
    court complaint, while asserting claims of negligence, breach of contract, breach of fiduciary
    10
    duty and gross negligence, actually focused on the administration of a trust which had been
    under “the exclusive jurisdiction of the [chancery court] and has been since its inception.” 
    Id. at 1151. We
    likewise stated in Trustmark:
    The Plaintiffs counter that they seek legal action rather than equitable remedies
    and that subject matter jurisdiction is proper in the circuit court; however, the
    Plaintiffs concede that when determining the true nature of the claim, one must
    look at the substance, and not the form, of the claim in order to determine
    whether the claim is legal or equitable.[6] Briggs & Stratton Corp. v. 
    Smith, 854 So. 2d at 1049
    ; Tillotson v. Anders, 
    551 So. 2d 212
    , 214 (Miss. 1989);
    Thompson v. First Miss. Nat’l Bank, 
    427 So. 2d 973
    , 976 (Miss. 1983);
    Dixie Nat’l Life Ins. Co. v. Allison, 
    372 So. 2d 1081
    , 1085 (Miss. 1979). As
    Trustmark correctly asserts, “[a]lthough, the Plaintiffs employ the language of
    negligence and legal remedy, the fundamental substance of their claim is
    testamentary and 
    equitable.” 865 So. 2d at 1151
    .
    ¶19.    When we review Starkville’s complaint in today’s case, we can state with confidence
    that the relief sought on specific performance of a contract is typically the type of relief to be
    considered by our chancellors sitting as a court of equity.             Additionally, Starkville presumably
    made a knowing and conscious decision to commence this litigation in chancery court (as
    opposed to circuit court) when it filed its complaint in 1995. This case has been litigated in
    chancery court, appealed to this Court, and relitigated in chancery court.                  As we stated in
    Rogers, because the chancery court had already heard extensive litigation in the case, it was
    certainly in the best position to hear and resolve the relevant issues in the related case which
    had been 
    commenced. 812 So. 2d at 211-12
    . In fact, in today’s case, the same chancellor has
    6
    This is exactly what the chancellor in today’s case did in addressing the jurisdictional issue when he
    stated that the issue had to be resolved by reviewing “the allegations of the complaint.”
    11
    been involved with the litigation of this case since its inception in 1995. Who was in a better
    position to fairly and correctly decide the issues in this case than the learned chancellor who
    had presided over all the proceedings in this case from the very beginning? 
    Trustmark, 865 So. 2d at 1151
    .
    ¶20.      Thus, for the reasons stated, we find that the chancellor quite appropriately denied
    Starkville’s motion to transfer this case to the Circuit Court of Oktibbeha County.     Inasmuch
    as we have determined that the Chancery Court of Oktibbeha County had jurisdiction to hear
    and decide this case, we now turn to the remaining issues.
    II.    WHETHER THE CHANCERY COURT ERRED IN GRANTING
    SUMMARY JUDGMENT IN FAVOR OF 4-COUNTY.
    ¶21.      Just as in considering the issue of jurisdiction, our standard of review in considering
    a trial court’s grant of summary judgment is de novo. Miller v. Meeks, 
    762 So. 2d 302
    , 304
    (Miss. 2000) (citing Short v. Columbus Rubber & Gasket Co., 
    535 So. 2d 61
    , 63 (Miss.
    1988)).     Accordingly, this Court must employ a factual review tantamount to that of the trial
    court when considering evidentiary matters in the record. Aetna Cas. & Sur. Co. v. Berry, 
    669 So. 2d 56
    , 70 (Miss. 1996). By design, the grant of summary judgment is governed by a high
    standard and requires that “the pleadings, depositions, answers to interrogatories and
    admissions on file, together with the affidavits, if any, show that there is no genuine issue as
    to any material fact and that the moving party is entitled to judgment as a matter of law.” Miss.
    R. Civ. P. 56(c).
    12
    ¶22.    In claiming error in the chancellor’s grant of 4-County’s motion for summary judgment,
    Starkville raises several additional errors committed by the chancellor en route to his grant of
    summary judgment. We will separately discuss these assertions of error.
    A.       Whether the chancellor erred in finding that Starkville lacked
    standing to challenge the constitutionality of House Bill 997.
    ¶23.    On the issue of Starkville’s standing to attack the constitutionality of H. B. 997, the
    chancellor, in his opinion granting partial summary judgment, stated:
    The City of Starkville is a political subdivision of the State. It is created by the
    State and exists through the action of the State. All rights and powers possessed
    by the City are at the discretion of the State by grant of statute. Therefore as
    held in the Oxford case, a city cannot attack the constitutionality of State
    legislation on grounds that its own rights have been impaired. [Starkville] has no
    standing to raise an issue of unconstitutionality of the immediate statute. The
    statute is presumed constitutional and can only be declared unconstitutional if
    shown to be so beyond a reasonable doubt. As this lack of standing by
    [Starkville] disposes of its challenge to H. B. 997, the constitutionality of the
    statute need not be reached.
    ¶24.    The “Oxford case” to which the chancellor referred in his opinion is our decision in
    Cities of Oxford v. N. E. Miss. Elec. Power Ass’n, 
    704 So. 2d 59
    (Miss. 1997). In Oxford,
    twelve municipalities commenced a declaratory judgment action in circuit court seeking to
    have the 1987 Amendments declared unconstitutional.             
    Id. at 61. The
    municipalities in Oxford
    conceded the right of the Legislature to take away the municipalities’ eminent domain power,
    but asserted that the 1987 Amendments unconstitutionally placed in the hands of private
    corporations (i.e., power companies) “the ability to prevent [the municipalities’] exercise of
    the power of eminent domain.” 
    Id. at 66. In
    affirming the circuit court’s grant of summary
    judgment in favor of the utilities and against the municipalities, we stated:
    13
    The municipalities have no inherent power or right of eminent domain. The
    municipalities have asserted that the defendant-utilities have some sort of “veto”
    power over the municipalities’ eminent domain power. The 1987 Amendments
    provide a procedure which the municipalities must follow before condemning
    the land service areas and facilities of the defendant-utilities.      Surely the
    Legislature which may grant or deny the power of eminent domain to a
    municipality may also establish a procedure or method by which it may be void.
    
    Id. at 67. ¶25.
       However, with all deference to the chancellor and the parties in the case sub judice, the
    issue here is not one of standing (just as it was not the issue in Oxford). If it were, then as
    correctly asserted in its brief, Starkville would prevail on the standing issue.            In City of
    Belmont v. Miss. State Tax Comm’n, 
    860 So. 2d 289
    (Miss. 2003), twenty municipalities
    commenced a declaratory judgment action against the Mississippi State Tax Commission
    (MSTC), in an effort to have the MSTC judicially mandated to divert state sales tax funds to
    the municipalities. 
    Id. at 291-92. In
    Belmont, relying on our decision in Harrison County
    v. City of Gulfport, 
    557 So. 2d 780
    (Miss. 1990), we set out our general rule on standing:
    Parties may sue or intervene where they assert a colorable
    interest in the subject matter of the litigation or experience an
    adverse effect from the conduct of the defendant, see Dye v. State
    ex rel. Hale, 
    507 So. 2d 332
    , 338 (Miss. 1987); Frazier v. State
    of Mississippi, 
    504 So. 2d 675
    , 691-92 (Miss. 1987); Belhaven
    Improvement Association, Inc. v. City of Jackson, 
    507 So. 2d 41
    ,
    45-47 (Miss. 1987), or as otherwise authorized by law, see, e.g.,
    Canton Farm Equipment v. Richardson, 
    501 So. 2d 1098
    , 1105-
    09 (Miss. 1987); City of Pascagoula v. Scheffler, 
    487 So. 2d 196
    , 198 (Miss. 1986).
    Harrison County v. City of Gulfport, 
    557 So. 2d 780
    , 782 (Miss. 1990).
    ************
    14
    Because the Municipalities have a colorable interest in the subject matter of this
    litigation, we find the trial court erred in dismissing this suit on the grounds that
    the Municipalities lacked 
    standing. 860 So. 2d at 296-97
    .
    ¶26.    Clearly, Starkville had standing to challenge the constitutionality of H. B. 997, in that
    Starkville (1) had a colorable interest in the subject matter of the litigation and (2) experienced
    an adverse effect from the conduct of 4-County.         Thus we find the chancellor erred in his
    finding that Starkville lacked standing to challenge the constitutionality of H. B. 997; however,
    such finding of error hardly ends the inquiry.
    ¶27.    Notwithstanding a finding of Starkville’s lack of standing to challenge H. B. 997, the
    chancellor still proceeded to address the bill’s constitutionality.     The record clearly reveals
    that Starkville was not in any way hampered in fully presenting its case before the chancellor
    because of the chancellor’s finding of lack of standing.       Thus, the chancellor’s error in this
    regard is harmless beyond any doubt. See Guar. Nat’l Ins. Co. v. Pittman, 
    501 So. 2d 377
    , 386
    (Miss. 1987).
    B.      Whether the chancellor erred in finding that performance under
    the parties’ 1963 service area agreement requires specific approval
    from the Mississippi Public Service Commission in accord with
    the Legislature’s 1987 and 2002 Amendments.
    ¶28.    At the heart of this ongoing litigation is the effect that the 1987 and 2002 Amendments
    has on the parties’ ability to legally perform under their 1963 service area agreement. In 2002,
    this same question was before this Court, and we concluded that the parties’ contract was valid
    and enforceable within the bounds of the regulatory powers conferred upon the MPSC.
    15
    Starkville 
    I, 819 So. 2d at 1218
    .      In so holding, we invited the Legislature to act.       “If the
    Legislature wishes to invalidate existing contracts between entities delivering public utilities,
    it should say so plainly” inasmuch as “[t]he Legislature is the foremost expositor of public
    policy.” 
    Id. at 1221. Opting
    not to affirm the chancellor’s grant of summary judgment and
    dismiss this litigation, we remanded the case back to the chancery court stating, “[i]f public
    policy now dictates that these contracts be voided, it is for the Legislature, not this Court, to
    say so.” 
    Id. In short order,
    the Mississippi Legislature responded to our invitation and within
    days of our decision in Starkville I passed H. B. 997. We quote below from Miss. Code Ann.
    § 77-3-13(3), with the strikeouts and underline indicating the revisions to the last two
    sentences of subsection (3) based on the passage of H. B. 997:
    Provided, However, nothing in this section shall be construed as requiring such
    certificate for a municipally owned plant, project or development, route, line or
    system or extension thereof in areas within one (1) mile of the corporate
    boundaries which are not certificated to another utility, and nothing in this
    chapter or other provision of law shall be construed as allowing a municipally
    owned plant, project or development, route, line or system or extension thereof
    in areas certificated to another utility. Provided, further, No certificate shall be
    required for extensions or additions within the corporate limits of a
    municipality being served by the holder of a certificate of convenience and
    necessity.[7]
    The main revisions to Miss. Code Ann. § 77-3-13 resulted in the addition of a new paragraph.
    Thus, pursuant to H. B. 997,     the then-existing subsection (7) became subsection (8), and the
    new subsection (7) provided:
    7
    The underlined language represents the language added to Miss. Code Ann. § 77-3-13(3) by H.B.
    997.
    16
    (7) Before the acquisition pursuant to any negotiated purchase agreement
    entered into before 1987, by any public agency, authority, district, state or other
    agency, institution or political subdivision thereof, of any certificate of public
    convenience and necessity or portion thereof, service areas or portion thereof,
    or operating rights or portion thereof, issued or granted by the commission
    pursuant to this section and/or the facilities or other properties and equipment
    of the utility providing service therein of any regulated utility defined in Section
    77-3-3(d)(I), the commission first shall determine that such service area,
    certificate of public convenience and necessity, or operating right, or portions
    thereof, shall be cancelled as provided in Section 77-3-21.
    Miss. Code Ann. § 77-3-13(7); Laws, 2002, ch. 303, § 1, eff. from and after passage (approved
    Mar. 4, 2002).
    ¶29.    Based on this new statutory guidance, we now revisit the parties’ 1963 Agreement and
    evaluate the effect that current procedural requirements, originally promulgated in 1987 and
    clarified in 2002, have on the parties ability to perform their contract.
    ¶30.    From their inception, public utilities have garnered much attention from our state
    government.      Accordingly, their important function places utility companies squarely in the
    public eye and intermittently subject to legislative prerogative.           It is no doubt important for
    legislators to insure adequate service to their constituents and therefore important that they
    stay abreast of the activities of their constituents’ utility providers.        In 1987, the Legislature
    decided to reassess the procedure by which it guaranteed reasonably adequate service to our
    citizenry, and accordingly, amended Miss. Code Ann. §§ 77-3-13, -17 & 21, by passing Senate
    Bill No. 2840, Laws, 1987, ch. 353, § 1.
    ¶31.    With the passage of the 1987 Amendments, the Legislature sought to assure continued
    adequacy of utility services to the citizens of this state, and in particular to the customers and
    17
    consumers of regulated public utilities. To do this, the Legislature conferred plenary authority
    upon the MPSC over the inhabitants and consumers of those service areas which had been
    included in certificates of public convenience and necessity and over the operating rights
    granted therein. 
    Id. In amending Section
    77-3-13, the 1987 Legislature added paragraph (6):
    (6) Prior to acquisition pursuant to Section 77-3-17, Mississippi Code of 1972,
    or other provisions of law, by any public agency, authority, district, state or
    other agency, institution or political subdivision thereof, of any certificate of
    public convenience and necessity or portion thereof, service areas or portion
    thereof, or operating rights or portion thereof, issued or granted by the
    commission pursuant to the provisions of this Section 77-3-13 and/or the
    facilities or other properties and equipment of the utility providing service
    therein; of any regulated utility as defined in Section 73-3-3(d)(i),(ii) and (iii),
    Mississippi Code of 1972, the commission shall first determine if such service
    area, certificate of public convenience and necessity or operating right, or
    portions thereof, should be cancelled as provided in Section 77-3-21,
    Mississippi Code of 1972.
    Miss. Code Ann. § 77-3-13 (1972) (see also Senate Bill No. 2840, 1987 Miss. Laws ch. 353,
    § 1).
    ¶32.    Section 77-3-21 provides for adequacy hearings and when read in pari materia with
    Section 77-3-17, works to curtail a municipalities’ ability to exercise eminent domain over
    public utilities holding certificates of public convenience and necessity.    Additionally, Section
    77-3-21 provides in pertinent part:
    Prior to any municipality exercising the power of eminent domain as provided
    in Section 77-3-17, the commission shall determine that the certificate of
    public convenience and necessity granted to the utility pursuant to Section 77-3-
    13 for the service area wherein such facilities are located, shall be cancelled as
    provided in this section.
    Miss. Code Ann. § 77-3-21 (1972) (see also S. B. No. 2840, 1987 Miss. Laws ch. 353, § 1).
    18
    ¶33.    The first paragraph of section 77-3-21 expressly sets out the procedure by which a
    certificate of public convenience and necessity is cancelled:
    The commission may, after hearing had upon due notice, make such findings as
    may be supported by proof as to whether any utility holding a certificate under
    the provisions of this article is rendering reasonably adequate service in any area
    covered by such utility’s certificate. In the event the commission finds that such
    utility is not rendering reasonably adequate service the commission may enter
    an order specifying in what particulars such utility has failed to render
    reasonably adequate service and order that such failure be corrected within a
    reasonable time, such time to be fixed in such order. If the utility so ordered to
    correct such a failure fails to comply with such order of the commission and the
    commission finds that cancellation of its certificate would be in the best
    interest of the consuming public served by the holder of the certificate, its
    certificate for the area affected may be revoked and cancelled by the
    commission.
    Miss. Code Ann. § 77-3-21 (1972).
    ¶34.    It appears that the 1987 Amendments were initiated by the Legislature not only to
    reform prevailing procedures which had either been reinforced by or implemented under the
    1956 Public Utilities Act, but also to streamline diverse authority into a single administrative
    body which could ultimately guarantee “reasonably adequate service” to consumers in
    certificated areas.     Accordingly, the amendments consolidated the authority and power
    formerly instituted in the plurality of the state’s municipalities and conferred such authority
    directly upon the MPSC. We first acknowledged the impact of the 1987 Amendments in City
    of Clarksdale v. Miss. Power & Light Co., 
    556 So. 2d 1056
    (Miss. 1990), where we stated
    that “prior to a municipality exercising the power of eminent domain against a utility the
    certificate of public convenience and necessity held by the utility had to be cancelled by the
    [MPSC].” 
    Id. at 1057. In
    Oxford, we again considered the amendments and stated, “[t]he 1987
    19
    Amendments provide a procedure which the municipalities must follow before condemning
    the land service areas and facilities of the 
    defendant-utilities.” 704 So. 2d at 67
    . “[P]rior to any
    condemnation as provided for under the Miss. Code Ann. § 77-3-17, the [M]PSC must first
    determine that the certificated utility is not providing reasonably adequate service in the area
    in question and that the utility’s certificate of public convenience and necessity should be
    canceled as provided in Miss. Code Ann. Section 77-3-21.” 
    Id. at 64. The
    implicit intent of
    the 1987 Amendments was to provide infrastructure and centralize the authority regulating
    properly certificated utility providers and to obviate ad hoc agreements predicated on a
    municipalities’ perceived unfettered right of condemnation and eminent domain.       To this end,
    we can safely conclude that the 1987 Amendments were enacted in an attempt to assure
    efficient, economic and uninterrupted service to this state’s consuming public.      In 2002, we
    recognized this and noted:
    For many years, eminent domain in these premises, unfettered by any reference
    to the Public Service Commission, was in fact the public policy. This contract
    and perhaps others were entered into during that period. If public policy now
    dictates that these contracts be voided, it is for the Legislature, not this Court,
    to say so.
    Starkville 
    I, 819 So. 2d at 1221
    . Today, we recognize that the Legislature has clearly stated
    that it is no longer this State’s public policy for our municipalities to have unfettered eminent
    domain power and that municipalities thus can no longer lay claim to land in a certificated area
    and condemn certificated providers’ facilities and equipment, without express approval of the
    MPSC.
    20
    ¶35.    While municipalities enjoyed unfettered use of their eminent domain power for over
    thirty years, it eventually became the Legislature’s clear intent to relieve our municipalities
    of such power and authority.         In 2002, our Legislature explicitly clarified its intent and purpose
    for enacting the 1987 Amendments via its passage of H. B. 997. With its most recent action,
    it has become abundantly clear that the Mississippi Legislature has unbound the hands of
    certificated service providers and thwarted the effect of leveraged service agreements formed
    prior to the 1987 legislation.
    ¶36.    In this case, Starkville is attempting to effectuate its last opportunity to exercise its
    formerly conferred power of eminent domain.                  Starkville desires to legally avoid the all-
    inclusive statutory effect of the Legislature’s 1987 Amendments by relying on its 1963
    Agreement with 4-County.           In essence, Starkville is demanding justice based entirely on a
    snapshot of a public utility service law which was passed almost a half-century ago. In granting
    partial summary judgment, the chancellor correctly interpreted and applied H. B. 997 as
    expressly clarifying the         intended legislative    interpretation   to   be   given   to   the   1987
    Amendments to Sections 77-3-13, -17 & -21. The chancellor stated in his opinion:
    The pre-1987 agreements to purchase cannot be enforced unless the subject
    certificate held by the vendor-utility shall first be cancelled under Section 77-3-
    21. This is a statutory condition of approval of any sale under a pre-1987
    agreement of purchase and binds both the Public Service Commission [MPSC]
    and any parties to a pre-1987 contract of purchase.
    In concluding that the parties were ultimately subject to the authority of the MPSC, the
    chancellor cited important contractual language from the parties’ 1963 Agreement whereby
    21
    both parties mutually agreed to cooperate in petitioning for, and securing the approval of the
    MPSC “as is or may hereafter be required by law.”
    ¶37.    Consistent with our decision in Starkville I, the chancellor found that the parties clearly
    understood that the subject matter of their agreement was one regulated by the State and
    subject to continued regulation by our Legislature.              Accordingly, the chancery court
    determined that the 2002 Amendments, which rendered the contract unenforceable unless
    approved by the MPSC, was contemplated by the parties by the express provisions of their
    1963 Agreement binding them to future legislative enactments. The chancellor thus quite
    appropriately granted partial summary judgment pending Starkville’s petition to the MPSC for
    approval of its proposed purchase of 4-County’s service rights and associated distribution
    facilities within the annexed area in accordance with the 1963 Agreement.
    ¶38.    The 1963 Agreement between Starkville and 4-County was predicated on the free reign
    of a municipality to exercise its power of eminent domain in order to assure its citizens of
    “reasonably adequate service”from its utility provider.         In 1987, our Legislature expressly
    revised this procedure and divested the municipalities of this unfettered right.      Accordingly,
    the Legislature vested the MPSC with plenary authority and jurisdiction over the regulation of
    the state’s public utility services in certificated areas.   The entire scope of the parties’ 1963
    Agreement now falls squarely within the province of the MPSC, and while the parties in
    contracting took note of the MPSC, even had they not, the clear mandate issued by the
    Legislature in acting for the public interest places the subject matter of the service agreement
    well within the powers the Legislature has conferred upon the MPSC.
    22
    ¶39.    With the passage of H. B. 997, the Legislature has expressly and inextricably bound pre-
    1987 municipal-certificated service provider contracts to direct MPSC governance.                 In
    consideration of this specific legislative directive and in the absence of the MPSC’s express
    approval, it is abundantly clear that the 1963 Agreement can no longer be performed.
    Moreover, the Legislature through amendments to Miss. Code Ann. §§ 77-3-13, -21, has
    obviated Starkville’s ability to exercise its rights under its 1963 Agreement, inasmuch as
    Starkville failed to petition the MPSC for approval of its contract of sale within a reasonable
    time after the chancellor’s grant of partial summary judgment.
    ¶40.    For the reasons stated, we conclude that the chancellor did not err in finding that
    performance under the 1963 Agreement required the approval of the MPSC based on the 1987
    and 2002 legislative amendments.
    C.      Whether the chancellor erred by retroactively applying House Bill
    997 passed by the Mississippi Legislature in 2002.
    ¶41.    This issue is obviously closely akin to the issue just discussed.      Starkville argues that
    Mississippi law prohibits the retroactive application of a statute absent the Legislature’s clear
    intent to do so.   We agree.     It is well-settled in our jurisprudence that statutes be interpreted
    prospectively, and where they are not, there must be a clear indication from the Legislature that
    they be applied retrospectively as well. City of Belmont v. Miss. State Tax Comm’n, 
    860 So. 2d
    at 302 (citing Mladinich v. Kohn, 
    186 So. 2d 481
    , 483 (Miss. 1966)). A statute will not
    be given retroactive effect unless it is manifest from the language that the Legislature intended
    it to so operate. 
    Mladinich, 186 So. 2d at 483
    .
    23
    ¶42.    As is abundantly clear by now, in 2002, the Legislature passed H. B. 997 within weeks
    after we handed down Starkville I and explicitly stated what had been implicit in the 1987
    Amendments to the Public Utilities Act of 1956. Accordingly, the Legislature added definitive
    language to Miss. Code Ann. § 77-3-13 which expressly states that all contracts entered into
    prior to 1987 are subject to the approval of the MPSC. “Before the acquisition pursuant to any
    negotiated purchase agreement         entered into before 1987...[t]he          commission   first   shall
    determine that such service area, certificate of public convenience and necessity, or operating
    right, or portion thereof, shall be cancelled as provided in Section 77-3-21.” Miss. Code Ann.
    § 77-3-13(7) (Supp. 2002).        By its very terms as stated above, H. B. 997 reveals a clear
    legislative intent to have the 1987 Amendments apply retrospectively.            It is certainly hard to
    imagine a more manifest       indication of legislative intent than the language used in House Bill
    997 and codified as subsection (7) in Miss. Code Ann. § 77-3-13, especially when coupled
    with the blinding speed in which the Legislature reacted to our decision in Starkville I.
    ¶43.    While the clear intent of the Legislature was to have H. B. 997 apply directly to this
    case, inasmuch as we invited the Legislature to do so, this Court has also affirmed cases
    involving the retroactive application of statutory amendments to pending litigation.                   In
    evaluating retroactive legislation in Belmont, we cited precedent as supporting “the retroactive
    application of legislation, even when the legislation would abate litigation pending prior to the
    legislation becoming adopted.” 
    860 So. 2d
    at 303-04 (see USPCI of Miss., Inc. v. State ex rel.
    24
    McGowan, 
    688 So. 2d 783
    , 786-87 (Miss. 1997); City of Clarksdale v. Miss. Power & Light
    Co., 
    556 So. 2d 1056
    (Miss. 1990)).
    ¶44.   In Belmont, municipalities brought an action against the Mississippi State Tax
    Commission in November of 1999, seeking declaratory, as well as injunctive relief, so as to
    force the MSTC to comply with state law concerning the diversion of state sales tax to
    
    municipalities. 860 So. 2d at 292
    . Four months later, in March of 2000, the Legislature passed
    House Bill 987, and using definitive language endorsed the method employed by the MSTC for
    calculating payments due all municipalities. 
    Id. at 293. After
    the circuit court’s dismissal
    pursuant to Miss. R. Civ. P. 12(b)(6), the municipalities appealed to this Court.    In affirming
    the circuit court’s dismissal, we held inter alia that this Court had previously allowed the
    retroactive application of statutes, amendments and rules, citing Burrell v. Miss. State Tax
    Comm’n, 
    536 So. 2d 848
    (Miss. 1988). “[L]egislative enactment of House Bill No. 388 was
    so integrally related to the adoption of House Concurrent Resolution 41, so that the latter,
    once ratified, ought be taken as breathing legal life into the 
    former. 536 So. 2d at 860.”
    Belmont, 860 So. 2d at 302
    .
    ¶45.   We addressed the very same amendments at issue in this case in Clarksdale and found
    them determinative of pending litigation.   In Clarksdal e, the city filed an eminent domain
    action on March 5, 1987, in order to condemn the facilities of a certificated electrical 
    utility. 556 So. 2d at 1057
    . Twelve days later, on March 17, 1987, the Mississippi Legislature adopted
    the 1987 Amendments. 
    Id. As stated previously,
    the 1987 Amendments severely curtailed a
    25
    municipality’s ability to exercise its power of eminent domain and specifically required, “that
    prior to a municipality exercising the power of eminent domain against a utility the certificate
    of public convenience and necessity held by the utility had to be cancelled by the [MPSC].” 
    Id. “The trial judge
    held that because the City’s right of eminent domain was a creation of statute,
    under well-settled law any amendment to a statute was treated as though it had been a part of
    the original statute.” 
    Id. Since the MPSC
    had not acted on the utility's certificate of public
    convenience and necessity, the trial judge ultimately dismissed the City's petition           In affirming
    the trial judge’s retroactive application of the 1987 amendments, we referred to precedent:
    In Oliphant v. The Carthage Bank, 
    224 Miss. 386
    , 
    80 So. 2d 63
    , 72 (1955), we
    held:
    It is well-settled by the decisions of our Court, and in most every
    other jurisdiction, that when proceedings are in process under a
    statute and have not been completed, and have not reached the
    stage of final judgment, and a new act is passed, modifying the
    statute under which the proceedings were begun, the new statute
    becomes integrated into and a part of the old statute as fully as if
    written therein from the very time the old statute was 
    enacted. 224 Miss. at 410
    , 80 So. 2d at 
    72. 556 So. 2d at 1057
    .
    ¶46.        In USPCI, a county resident filed suit charging the Governor did not follow proper
    procedures in connection with the proposed construction of a hazardous waste treatment
    
    facility. 688 So. 2d at 785
    . While the suit was pending, the Legislature amended Miss. Code
    Ann. § 23-43-5 to specifically exclude the Governor from these requirements.                  In reversing
    the circuit court’s order which directed the Governor to comply with the Administrative
    Procedures Law in adopting a capacity assurance plan for the construction of a hazardous waste
    26
    treatment facility, we stated: “An amended act is ordinarily construed as if the original statute
    had been repealed, and as far as any action after the adoption of the amendment is concerned,
    as if the statute had been originally enacted in its amended form.” 
    Id. at 786-87 (citing
    Beatty
    v. State, 
    627 So. 2d 355
    , 357 (Miss. 1983); Stone v. Independent Linen Serv. Co., 
    212 Miss. 580
    , 
    55 So. 2d 165
    (1951); McMullen v. Sinclair Ref. Co., 
    207 Miss. 71
    , 
    41 So. 2d 382
    (1949)). We concluded in USPCI:
    “When cases are in the bosom of this Court and there is involved a statute that
    is modified prior to a final decision of this Court, we take that modification into
    consideration.” Bell v. Mitchell, 
    592 So. 2d 528
    (Miss. 1991), citing Parker v.
    Bailey, 
    437 So. 2d 33
    (Miss. 
    1983). 688 So. 2d at 787
    .
    ¶47.   As we have stated in this case and prior cases, we are keenly aware of our responsibility
    regarding judicial review of legislative action.      We indeed should be about the business of
    interpreting legislative enactments while avoiding judicial legislating.   This should be apparent
    from our decision in Starkville I.    With that in mind, we are again guided by our decision in
    Belmont:
    For those who might experience some consternation over whether today’s
    decision somehow erodes the independence of the judicial branch of state
    government, it should be remembered that municipalities are but creatures of
    the state and they possess only such power as conferred upon them by
    statute.....This concept should hardly be a shock to 
    anyone. 860 So. 2d at 306
    .
    ¶48.   Today, there is not only clear legislative intent that H.B. 997 should indeed apply to this
    instant litigation, there is also clear precedent indicating that, if the Legislature chooses to
    27
    amend a statute while a case is still pending, we will apply that amendment as if it had been part
    of the statute all along. H. B. 997 was styled “Act to Clarify the Procedure for Acquisition of
    Certain Utility Property within Municipally Annexed Areas.”            In no uncertain terms the 2002
    Act makes explicit that which had been implicit in the 1987 Amendments, and the procedure
    enacted under Miss. Code Ann. § 77-3-13 should unquestionably be read as if subsection (7)
    had been a part of the statute all along.
    ¶49.    We thus find for the reasons stated that the chancellor was indeed eminently correct
    in retroactively applying House Bill 997 to this pending litigation.
    D.       Whether the chancellor in failing to find that H. B. 997 violates the
    Contracts Clause of the United States Constitution as well as the
    Mississippi Constitution.
    ¶50.    Starkville asserts that the Contracts Clause prohibits all retrospective legislation that
    violates vested contractual rights.
    ¶51.    Before addressing the substance of this argument we must point out that Starkville’s
    failure to notify the Attorney General of its constitutional challenge procedurally barred
    Starkville from raising this issue.         Miss. R. Civ. P. 24(d) requires a party challenging the
    constitutionality of a statute to give notice to the Attorney General within such time as to
    afford him an opportunity to intervene and argue the question of constitutionality. The purpose
    of this provision is to protect the public’s interest in an action which may have far-reaching
    implications. Miss. R. Civ. P. 24(d) states as follows:
    In any action (1) to restrain or enjoin the enforcement, operation, or execution
    of any statute of the State of Mississippi by restraining or enjoining the action
    of any officer of the State or any political subdivision thereof, or the action of
    28
    any agency, board, or commission acting under state law, in which a claim is
    asserted that the statute under which the action sought to be restrained or
    enjoined is to be taken is unconstitutional, or (2) for declaratory relief brought
    pursuant to Rule 57 in which a declaration or adjudication of the
    unconstitutionality of any statute of the State of Mississippi is among the relief
    requested, the party asserting the unconstitutionality of the statute shall notify
    the Attorney General of the State of Mississippi within such time as to afford
    him an opportunity to intervene and argue the question of constitutionality.
    Miss. R. Civ. P. 24(d).
    ¶52.   In Cockrell v. Pearl River Valley Water Supply District, 
    865 So. 2d 357
    (Miss. 2004),
    we barred    a motorist from arguing on appeal the issue of the unconstitutionality of a statute
    providing that all claims under the Mississippi Tort Claims Act were to be determined without
    a jury. 
    Id. at 357. We
    declined to address the issue and held:
    “We accept without hesitation the ordinarily sound principle that
    this Court sits to review actions of trial courts and that we should
    undertake consideration of no matter which has not first been
    presented to and decided by the trial court. We depart from this
    premise only in unusual circumstances.”Educational Placement
    Services v. Wilson, 
    487 So. 2d 1316
    , 1320 (Miss. 1986).
    Barnes v. Singing River Hosp. Sys., 
    733 So. 2d 199
    , 202-03 (Miss. 
    1999). 865 So. 2d at 360
    .         In Cockrell, the motorist failed to raise the issue of the constitutionality
    of Miss. Code Ann. §11-46-13 before the trial court and also failed to notify the Attorney
    General.    We ultimately concluded that Rule 24(d) barred review. Again in referring to our
    decision in Barnes, we stated that “Rule 24(d) of the Mississippi Rules of Civil Procedure
    requires that proper notice be given to the Attorney General when the constitutionality of a
    29
    statute is challenged ‘to afford him an opportunity to intervene and argue the question of
    constitutionality.’” Miss. R. Civ. P. 24(d). 
    Id. at 360. ¶53.
       In the present case, Starkville did not provide notice at the trial court level to the
    Attorney General of its constitutional challenge to H. B. 997.               Instead, Starkville delayed
    notifying the Attorney General of its constitutional challenge until after all primary briefing
    was completed on appeal to this Court. In fact, it was not until October 4, 2004, that Starkville
    filed with this Court a “Motion For Special Order” wherein it sought permission to serve a
    copy of its appellate brief upon the Attorney General so that the Attorney General could
    thereafter make an appearance in this case and file a brief with this Court. See M.R.A.P. 44.
    Thereafter, the Chief Justice of this Court entered an order granting Starkville’s motion and
    permitting the Attorney General to make an appearance and file a brief.                 Subsequent to this
    order, the Attorney General of the State of Mississippi did in fact submit a brief in this case.
    ¶54.    Notwithstanding this bar, this Court, in the alternative, has jurisdiction to consider
    constitutional challenges absent proper notice if it desires.         “Notice to the Attorney General
    is mandatory even if the court thinks the constitutional issue frivolous, but failure to give the
    notice does not deprive the court of jurisdiction to hear the case.” Miss. R. Civ. P. 24 cmt.
    (See State v. Watkins, 
    676 So. 2d 247
    (Miss. 1996)).               In the case sub judice, the Attorney
    General has filed a brief in which he raises procedural bar due to Starkville’s failure to give
    proper notice in the trial court; however, the Attorney General has likewise quite appropriately
    alternatively addressed on the merits the issue of the constitutionality of H.B. 997.
    30
    ¶55.    When reviewing the constitutionality of a legislative enactment, there is a strong
    presumption of validity, and a party challenging the constitutionality of a statute must prove
    the unconstitutionality of the statute beyond a reasonable doubt. Richmond v. City of Corinth,
    
    816 So. 2d 373
    , 375 (Miss. 2002).
    ¶56.    The Contracts Clause of the Mississippi Constitution, Miss. Const. Art. 3, § 16, is
    nearly identical to that of the United States Constitution, U.S. Const. Art. I, § 10,            and is
    therefore generally construed under the same standards and analyses. Pub. Employees’ Ret.
    Sys. v. Porter, 
    763 So. 2d 845
    , 849-50 (Miss. 2000). Accordingly, the United States Supreme
    Court’s treatment of the Contracts Clause in relation to a state’s police power is categorical,
    and the Court has refused to impair a state Legislature’s ability to act for the public good.
    ¶57.    The United States Supreme Court’s treatment of the Contracts Clause as it relates to
    the legislature’s ability to legislate for the public welfare is well-settled.        Moreover, there is
    clear precedent supporting a state legislature’s ability to obviate pre-existing contractual
    obligation, in order to protect the lives, health, morals, comfort and general welfare of its
    citizens. In Keystone Bituminous Coal Ass'n v. DeBenedictis, 
    480 U.S. 470
    , 
    107 S. Ct. 1232
    ,
    
    94 L. Ed. 2d 472
    (1987), an action brought by coal companies challenging the Pennsylvania
    Subsidence Act which required that fifty percent of the coal beneath certain structures be kept
    in place to provide surface support, the United States Supreme Court upheld legislative
    prerogative in the realm of public interest.        
    Id. Accordingly, the Supreme
    Court refused to
    second-guess the Commonwealth’s legislative determinations and held inter alia that the public
    31
    purposes served by the Subsidence Act justified the impairment of the coal companies’
    contractual agreements with the surface-owners. 
    Id. at 1253. In
    support of its holding, the
    Supreme Court revisited Contracts Clause jurisprudence:
    [I]t is well settled that the prohibition against impairing the obligation of
    contracts is not to be read literally. W.B. Wortham Co. v. Thomas, 
    292 U.S. 426
    , 433, 
    54 S. Ct. 816
    , 818, 
    78 L. Ed. 1344
    (1934). The context in which the
    Contracts Clause is found, the historical setting in which it was adopted,8 and our
    cases construing the Clause, indicate that its primary focus was upon legislation
    that was designed to repudiate or adjust pre-existing debtor-creditor
    relationships that obligors were unable to satisfy. See e.g., 
    ibid. Home Building &
    Loan Assn. v. Blaisdell, 
    290 U.S. 398
    , 445, 54 S. Ct 231, 
    78 L. Ed. 413
            
    (1934). 480 U.S. at 502-03
    . In drawing its ultimate conclusion, the Supreme Court reiterated standards
    for evaluating impairments of contracts:
    [T]he finding of a significant and legitimate public purpose is not, by itself,
    enough to justify the impairment of contractual obligations. A court must also
    satisfy itself that the legislature’s “adjustment of ‘the rights and responsibilities
    of contracting parties [is based] upon reasonable conditions and [is] of a
    character appropriate to the public purpose justifying [the legislation’s]
    adoption.’” Energy Reserves Group, Inc. v. Kansas Power & Light Co., 
    459 U.S. 400
    , 412, 
    103 S. Ct. 697
    , 704, 
    74 L. Ed. 2d 569
    (1983) (quoting United
    States Trust Co. v. New Jersey, 
    431 U.S. 1
    , 22, 
    97 S. Ct. 1505
    , 1517, 
    52 L. Ed. 2d 92
    (1977)). But, we have repeatedly held that unless the State is itself
    a contracting party, courts should “properly defer to legislative judgment as to
    the necessity and reasonableness of a particular measure.” Energy Reserves
    Group, 
    Inc., 459 U.S. at 413
    (quoting United States Trust, 
    Co., 431 U.S. at 23
    ).
    480 U.S. at 505.
    8
    “The Contracts Clause was made part of the Constitution to remedy a particular social evil – the
    state legislative practice of enacting laws to relieve individuals of their obligations under certain contracts –
    and thus was intended to prohibit States from adopting ‘as [their] policy the repudiation of debts or the
    destruction of contracts or the denial of means to enforce them.’” Home Building & Loan Ass’n v.
    Blaisdell, 
    290 U.S. 398
    , 439; 
    54 S. Ct. 231
    , 
    78 L. Ed. 413
    (1934).
    32
    ¶58.   In Home Building & Loan Assn. v. Blaisdell, a landmark case often referred to as the
    leading modern case on the Contracts Clause, the United States Supreme Court upheld
    Minnesota’s statutory moratorium against home foreclosures, in relevant part, because the
    legislation at issue had the legitimate end of protecting a basic interest of society, and not just
    to protect the economic advantage of some favored group. 
    Id. at 445. The
    Blaisdell Court
    referred to its decision in Manigualt v. Springs, 
    199 U.S. 473
    , 
    26 S. Ct. 127
    , 
    50 L. Ed. 274
    (1904), and stated:
    It is the settled law of this court that the interdiction of statutes impairing the
    obligation of contracts does not prevent the State from exercising such powers
    as are vested in it for the promotion of the common weal, or are necessary for
    the general good of the public, though contracts previously entered into between
    individuals may thereby be affected. This power, which in its various
    ramifications is known as the police power, is an exercise of the sovereign right
    of the government to protect the lives, health, morals, comfort and general
    welfare of the people, and is paramount to any rights under contracts between
    
    individuals. 290 U.S. at 437
    , 54 S.Ct. at 240. Similarly, in Hudson County Water Co. v. McCarter, 
    209 U.S. 349
    , 
    28 S. Ct. 529
    , 
    52 L. Ed. 828
    (1908), the United States Supreme Court upheld a New
    Jersey statute which prohibited the transportation of the state’s water into any other state.
    Speaking through Justice Holmes, the Court stated, “[o]ne whose rights, such as they are, are
    subject to state restriction, cannot remove them from the power of the State by making a
    contract about 
    them.” 209 U.S. at 357
    , 28 S.Ct. at 531.
    ¶59.   In the case sub judice, the regulation of this State’s public utilities falls squarely within
    our Legislature’s power and authority.      It follows that the parties recognized this and even
    33
    contemplated it within the four corners of their contract.         In passing the 1987 Amendments,
    the Legislature sought to centralize state authority over the regulation of our public
    certificated utility providers and, additionally, to extricate local interests from interfering with
    this authority.
    ¶60.    Starkville argues that its contractual rights had vested. We disagree. In State ex rel.
    Pittman v. Ladner, 
    512 So. 2d 1271
    (Miss. 1987), this Court explained that a vested right is
    a right that must be a “contract right, a property right, or a right arising from a transaction in
    the nature of a contract which has become perfected to the degree that it is not dependent on
    the continued existence of the statute.” 
    Id. at 1275-76. Accordingly,
    Starkville’s rights as of
    1987 had yet to vest at the time its contract became subject to MPSC authority and, inasmuch
    as Starkville failed to secure MPSC approval, its contractual rights have yet to vest.
    ¶61.    Based on the foregoing reasons, we find that the chancellor did not err in finding that
    H. B. 997 did not violate the Contracts Clause of our federal and state constitutions.
    ¶62.    We thus conclude for the reasons stated that the chancellor did not err in granting
    summary judgment against Starkville and in favor of 4-County.
    CONCLUSION
    ¶63.    In 1963, Starkville and 4-County entered into an agreement which provided among other
    things that should Starkville thereafter annex territory serviced by 4-County, Starkville could
    unilaterally buy 4-County’s service rights and distribution facilities within the newly annexed
    area, and 4-County would be obligated to sell.              Starkville and 4-County, by clear and
    unequivocal language in their contract, mutually agreed for their contract to be subject to the
    34
    approval of the Mississippi Public Service Commission “as is or may hereafter be required by
    law.”   Based on this contractual provision, Starkville and 4-County obviously envisioned that
    the Mississippi Legislature would possibly enact future laws which might affect their rights
    and obligations created under the contract. The 1987 and 2002 Amendments are constitutional
    beyond any doubt and the chancellor was eminently correct in retroactively applying the 2002
    Amendments (H. B. 997), to this pending litigation.
    ¶64.    If Starkville had any hope of buying 4-County’s service rights and distribution facilities
    in the 1994 annexed area, it had to receive MPSC approval pursuant to the 1987 and 2002
    Amendments.      The record is devoid of any effort on the part of Starkville to secure MPSC
    approval of its agreement, even after being specifically ordered by the chancellor to do so.
    ¶65.    In sum, the chancellor did not err in (1) refusing to transfer this case to circuit court
    and (2) granting summary judgment by finding that (a) the 1963 Agreement was subject to
    approval of the MPSC pursuant to the 1987 and 2002 Amendments, (b) H. B. 997 should be
    applied retroactively to this pending litigation, and (c) H. B. 997 did not violate the Contracts
    Clause of the federal and state constitutions.          While the chancellor erred in finding that
    Starkville lacked standing to challenge the constitutionality of H. B. 997, such error is
    harmless beyond any doubt since the chancellor alternatively addressed this issue.
    ¶66.    Accordingly, we affirm the Oktibbeha County Chancery Court’s entry of a final
    judgment of dismissal in favor of 4-County Electric Power Association and against the City
    of Starkville.
    ¶67.    AFFIRMED.
    35
    SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY AND DICKINSON, JJ.,
    CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ AND RANDOLPH, JJ.,
    NOT PARTICIPATING.
    36