Central Louisiana Electric Co. v. Louisiana Public Service Commission , 253 La. 553 ( 1969 )

BARITAM, Justice.

This is an appeal from a judgment rendered by the Nineteenth Judicial District Court for the Parish of East Baton Rouge affirming orders of dismissal by the Louisiana Public Service Commission of proceedings before it, and sustaining exceptions of no cause of action in a suit filed in that court.

In 1964 four private utility companies doing business in Louisiana filed a petition with the Louisiana Public Service Commission against Louisiana Electric Cooperative, Inc., seeking to enjoin the cooperative from the construction of an electric generating and transmission system or to require it to secure a certificate of public convenience and necessity for that construction. The plaintiffs alleged that the defendant was an electric cooperative organized under LSA-R.S. 12:301 et seq., with 12 electric distribution cooperatives as members; that the Rural Electrification Administration had approved a loan to the defendant cooperative of $56,521,000.00' for construction of a generating and transmission system to serve the wholesale electric power requirements of its member cooperatives, and that the member cooperatives at that time were purchasing their electric power from the plaintiff power companies at wholesale for resale to their members and their other customers. The cooperative filed an exception of no right or cause of action and exceptions to the Public Service Commission’s jurisdiction over it and over the subject matter of the proceedings.

Early in 1965 the Public Service Commission dismissed plaintiffs’ petition, holding that the member cooperatives were not “customers” of the complaining power companies within the meaning of LSA-R.S. 45:123. On appeal the Nineteenth Judicial District Court reversed the commission’s order and remanded the case for a hearing on the merits. During sporadic hearings on the merits, two pertinent decisions were rendered by the Louisiana Supreme Court Louisiana Power & Light Co. v. Louisiana Public Service Com’n, 250 La. 596, 197 So.2d 638 (1967), and Central Louisiana Electric Co. v. Louisiana Public Service Com’n, 251 La. 532, 205 So.2d 389 (1968). On the basis of those cases and for other reasons, the Public Service Commission then sustained the cooperative’s exceptions and dismissed the petition pending before it. A second appeal was taken to the district court, and a new and separate but identical suit filed in that court was consolidated with the appeal for hearing. The district court affirmed the Public Service Commission’s order sustaining the exceptions to the commission’s jurisdiction, and sustained the exceptions of no cause of action filed in the suit before it.

Although various contentions are made before this court, the resolution of one issue will determine the matter. The cooperative is, as stated in the plaintiffs’ petition, an electric cooperative organized under the Louisiana Electric Cooperative Act, LSA-R.S. 12:301 et seq., and the crucial issue is whether the Louisiana Public Service Commission has jurisdiction over such an electric cooperative.

The district court relied on the decisions in Louisiana Power & Light Co. and Central Louisiana Electric Co., supra, to arrive at its conclusion, saying in part: “We hold that insofar as statutory law is concerned, we can make no valid distinction between Louisiana Electric Cooperative, Inc. and those distribution cooperatives which the Supreme Court of Louisiana has ruled are not subject to the jurisdiction of the Louisiana Public Service Commission. * * * ”

In argument before us the plaintiffs admitted that they cannot prevail in this case unless we overrule the Central Louisiana Electric Co. case and repudiate the language, if not overrule the holding, in the Louisiana Power &' Light Co. case.

The Louisiana Power & Light Co. case was decided in March, 1967, with Mr. Justice McCaleb as the organ of the whole court. A rehearing was refused in May, but three justices dissented from the denial of a rehearing. Mr. Justice Hamiter, one of those three dissenters, was the author of the majority opinion in the Central Louisiana Electric Co. case, decided s in December, 1967, which reaffirmed the reasoning of Louisiana Power & Light Co., supra. Mr. Justice Summers was the only dissenter. A rehearing in that case was denied in January, 1968. Thus within less than one year this court acted twice upon the same question presented here, and the exact issue was met squarely by this court in the Central Louisiana Electric Co. case only months before submission of the present case.

Although some of the language in the Louisiana Power & Light Co. case may have been dictum, this court said of that decision in the Central Louisiana Electric Co. case: “On this appeal by Central from the district court’s judgment it asks that we reconsider and overrule our decision in the Louisiana Power and Light Company case, supra, wherein we held (among other things) that the provisions of LRS 45 :- 123, which require an electric public utility to obtain a certificate of public convenience and necessity from the Commission before serving customers already receiving service from another electric public utility, do not apply to electric cooperatives. But our further consideration of that case convinces us that the decision therein was correct and is amply supported by the reasons set out in the opinion. In fact, those reasons are well articulated and documented; and we reaffirm them.” (Emphasis supplied.)

Finally this court concluded in the Central Louisiana Electric Co. case: “Therefore, our conclusion is that electric cooperatives, assuming arguendo that they are ‘public utilities’ of some sort and as such might be placed by the Legislature either partially or wholly under the authority of the Commission, are not ‘electric public utilities’ or ‘other utilities’ envisioned by the language and within the intendment of Article VI, Section 4 of the Louisiana Constitution; and that, inasmuch as the Legislature has not exercised its prerogative to give the Commission control of them, the latter is without jurisdiction over their operations.” (Emphasis supplied.) ■

The plaintiffs have made strong and articulate argument to support their theory that these holdings should be overruled, and Mr. Justice Summers in his dissents in the prior cases has well stated their position. Nevertheless, in the face of two strong and recent decisions by this court within a brief period of time, and particularly in view of the pronouncement that the matter was for legislative attention, to. speak now in a contrary vein would weaken the stability of the law and could properly subject this court to the criticism of usurping the functions of the legislative and executive arms of government.¹ Our present statutory law and jurisprudential pronouncements make it clear that electric cooperatives are not subject to the jurisdiction of the Louisiana Public Service Commission.²

On the basis of the holdings in Louisiana Power & Light Co. v. Louisiana Public Service Com’n, supra, and Central Louisiana Electric Co. v. Louisiana Public Service Com’n, supra, the judgment of the district court affirming the dismissal of the power companies’ petition before the Louisiana Public Service Commission and dismissing the proceedings in that court is affirmed. Plaintiffs are cast for all costs in these proceedings.

1 . The Legislature considered this matter after our decisions and passed a bill placing electric cooperatives under the jurisdiction of the Louisiana Public Service Commission. This bill was vetoed by the Governor, however, and a reconsideration of it by the Legislature failed to receive enough votes to override the veto.

2 . The writer of this opinion, who was not a member of the court when those decisions were rendered, has never expressed a view of their correctness, and need not do so now since they will be applied as a matter of law.