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In re Delaware Power & Light Co.

Superior Court of Delaware, Kent County

August 24, 1953

In re DELAWARE POWER & LIGHT CO.

Proceedings on objections by a municipally owned utility to an alleged proposed extension of service by a privately owned utility into territory already served by the municipally owned utility. The Public Service Commission dismissed the complaint, and the municipally owned utility appealed. The Superior Court, Carey, J., held that the municipally owned utility had standing to complain and that the Commission should have inquired into the matter, at least to the point of finding out the extent to which the privately owned utility's extension plans had progressed.

Remanded with directions.

Page 271

[48 Del. 150] The City of Dover, a municipal corporation, is empowered by its charter to sell electric power outside its corporate limits. According to the petition filed by it with Public Service Commission, the City has since 1939 furnished power to the Air Force Base located several miles south of the City, as well as to other customers surrounding the Base. The petition charged that Delaware Power & Light Company, a private corporation, now proposes to serve the Air Base, but has not requested a certificate of public convenience and necessity; that this extension of the lines of the Power Company will adversely affect the City by depriving it of a large customer, reducing the value of its present lines and equipment, and probably depriving it of other customers. The petition asked the Commission to hold a hearing for the purpose of determining whether public convenience and necessity require the proposed extension, and prayed that a certificate to that effect be denied.

The Commission, after argument on the question of its jurisdiction, entered an order dismissing the petition. The only reason given in the order itself for the dismissal is that ‘ Delaware Power & Light Company has not requested from this Commission a certificate of public convenience and necessity’ . A short opinion included in the record contains the additional statement that ‘ from the language of the petition it is clear that at this time the Delaware Power & Light Company is not directly serving the Dover Air Force Base’ .

The present law governing the Public Service Commission is Title 26 Del.C. Ch. 1.Section 101 defines ‘ public utility’ in these words:

" Public utility' includes every individual, partnership, association, corporation, joint stock company, agency or department of the State, or any association of individuals engaged in [48 Del. 151] the prosecution in common of a productive enterprise (commonly called a ‘ Cooperative’ ), their lessees, trustees, or receivers appointed by any court whatsoever, that now operates or hereafter may operate, within this State, any railroad, street railway, traction railway, motor bus, electric trackless trolley coach, taxicab, automobile truck, express, steam, manufactured gas, natural gas, electric light, heat, power, water, telephone or telegraph service, system, plant or equipment, for public use.'

Section 122 declares that the Commission shall have no supervision or regulation of any public utility or over the property, property rights, equipment, facilities or franchise of any public utility that is municipally owned.

Certificates of public convenience and necessity are provided for in Section 162 in this language:

‘ Subject to the provisions of sections 101, 121 and 122 of this title, no individual, copartnership, association, corporation, joint stock company, agency or department of the State, cooperative, or the lessees, trustees or receivers thereof, shall begin the business of a public utility nor shall any public utility begin any extension of its business or operations without having first obtained from the Commission a certificate that the present or future public convenience and necessity require or will require the operation of such business or extension. This section shall not be construed to require any public utility to secure such a certificate for any extension within or to any territory already served by it, or for any extension into a territory contiguous to a territory already served by it, and not theretofore served by a public

Page 272

utility of like character. The Commission, after hearing, on the complaint of any public utility claiming to be adversely affected by any proposed extension, may make such order and prescribe such terms and conditions with respect to the proposed extension as may be required by the public convenience and necessity.’

William Watson Harrington and James H. Hughes, III, Dover, for appellant.

William S. Potter and Richard F. Corroon (of Berl, Potter & Anderson), Wilmington, for Delaware ...


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