Opinion

Decatur County Rural Electric Membership Corp. v. Public Service Co. of Indiana, Inc.

  • 261 Ind. 128
  • 301 N.E.2d 191
  • 1973 Ind. LEXIS 430
Court
Indiana Supreme Court
Filed
Sep 6, 1973
Status
Published
Author
DeBruler
On the bench
Hunter, Arterburn, Givan, Prentice, Debruler
Cited by
16 cases
Authority
More cited than 9.8%

The opinion

Opinion Concurring in Result

DeBruler, J.

I cannot keep in step with the majority of the Court, when it concludes from the language of IC 1971, 8-1-13-18, being Burns § 55-4418 (a) and IC 1971, 8-1-13-19, being Burns § 55-4418a, that the Legislature conceives of no distinctions between the cooperative public utility and other public utilities. It appears to me from these enactments that they clearly delineate the jurisdiction of the Public Service Commission over an REMC, and contain no expression or intendment whatsoever that an REMC be regulated in every respect the same as other utilities. Burns § 55-4418a grants jurisdiction to the Public Service Commission to fix rates which may be charged by an REMC for energy. Nothing more. Burns § 55-4418 (a) merely calls the REMC a “public utility” and subjects it to the loss of territory annexed by a city when that city is being served by some other “public utility”. That statement would not warrant the conclusion which arises from the majority opinion as I read it, that the Legislature intends that the rural electric cooperatives be considered “public utilities” and therefore subject to the regulatory scheme contained in the Public Service Commission Act.

Neither do I agree that the prior cases of this Court or the Public Service Commission Act itself add any support to the conclusion reached by the majority. Even the majority in Southern Indiana Gas & Electric Co. v. Indiana Statewide Rural Electric Coop. (1968), 251 Ind. 459 , 242 N. E. 2d 361 , *143 (DeBruler, J., dissenting) would be surprised to see their opinion cited as supportive of so sweeping a conclusion. There, the majority found that Statewide was required to seek Public Service Commission approval of its plan to generate electricity, since the original grant of authority in the original articles of incorporation approved by the Public Service Commission to do so, had been lost by non-use; and it was therefore concluded that Statewide should seek Public Service Commission approval for what was conceived in the majority as an expansion of the authority granted in the original articles of incorporation. In no way could the holding in that case support the conclusion that the REMC is a “public utility.”

My dissent in the Statewide case led to my concurring in result in the case of Morgan County REMC v. Public Service Company of Indiana (1970), 253 Ind. 541 , 255 N. E. 2d 822 . There, it was my unexpressed view that by enacting Burns § 55-4418a, the Legislature had directly affected the nature of the right of the REMC to serve in annexed areas, and that it had a right to do so in these circumstances. I did not agree that the REMC held only an indeterminate permit as defined in the Public Service Commission Act. I still contend, as I did in my dissent in the Statewide case, that it is up to the Legislature to decide whether the rural electric cooperatives shall be subjected to the full regulatory scheme of the Public Service Commission Act. To date, they have not done so.

Note. — Reported in 301 N. E. 2d 191 .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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