The opinion
Locher, J.,
dissenting. The majority opinion turns its back on our holding in Consumers’ Counsel v. Pub. Util. Comm. (1981), 67 Ohio St. 2d 372 [ 21 O.O.3d 234 ]. Therefore, I dissent.
In Consumers’ Counsel, supra, the commission had ordered that the utility’s rate could include increased expenses arising under a labor contract which was to take effect after the test year. We reversed the commission and concluded that to permit its order to stand “would emasculate the test period concept and abrogate the principle forming the basis of the ratemaking structure.” 67 Ohio St. 2d, at 376 . This was in spite of the fact that the utility’s request was “based upon a fixed legal obligation * * *.” 67 Ohio St. 2d, at 377 (Holmes, J., dissenting). In reasoning to our holding in that case, we observed:
“Under the provisions of R.C. 4909.15, the commission is to base any grant of a rate increase for utilities on a fair and reasonable rate of return on capital investment, and the costs incurred by the utility during the test period, a 12 month span typically determined by the date of filing of the application.
t( * * *
“The language of R.C. 4909.15 is unequivocal. Rate increases are based on costs of rendering utility service during the test period. The dates of the test year follow directly from the date the utility chooses to file for its rate increase. * * *” (Emphasis sic.) 67 Ohio St. 2d, at 374 . Those same principles apply to this case and require our reversal of the commission.
Tree-trimming has the laudable aim of minimizing the risk of disruptions in service. Nevertheless, DP&L failed to keep current with the challenges of nature. All utilities should stay even, at the very least, with the ravages of the elements and the demands of growing vegetation. Yet, DP&L chose when to file its rate request just as the utility had in Consumers’ Counsel, supra. DP&L also exacerbated the hazard by trimming only nine percent of the trees in each of the prior five years rather than 33V3 percent per year. This is not the type of anomaly against which R.C. 4909.15(D) was intended to protect, and we should not permit a utility to turn this kind of conduct into an economic advantage. This is particularly so in light of the fact that DP&L’s net income increased in 1980 to over $64 million, over $3 million higher than its net income in the previous year. Its net income in the first quarter of 1981 was over $32 million, an increase of $8 million over its forecasted net income for that period.
The holding of the majority, therefore, discourages timely tree-trimming rather than encouraging it. A utility may now receive an early return for tree-trimming expenditures if it delays making them long enough. This serves neither the consuming public nor the purposes of the statutory scheme for ratemaking. R.C. 4909.15.
*129 Accordingly, I would reverse the commission’s order and remand the cause to the commission with instructions to decrease the total rate of DP&L in an amount consistent with this opinion and our holding in Consumers’ Counsel, supra ( 67 Ohio St. 2d 372 [ 21 O.O.3d 234 ]).