CAJUN ELEC. POWER CO-OP., INC. v. PUBLIC SERV. COM'N

ON REHEARING

DIXON, Chief Justice.

Rehearing was granted to reconsider whether article IV, § 21(B) of the state constitution, by explicitly granting to the commission the full authority over "all public utilities," removes the ability of the legislature to alter the commission's jurisdiction over any business defined as a public utility at the time the 1974 Constitution was adopted. We conclude that it does. Insofar as R.S. 45:1163 is inconsistent with this plenary authority, it is unconstitutional.

THE COMMISSION'S CONSTITUTIONAL JURISDICTION

Article IV, § 21(B) provides that the public service commission "shall regulate all common carriers and public utilities and have such other regulatory authority as provided by law." (Emphasis added). Our code provides that "[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." C.C. 9 (previously article 13 (1870)). The code further provides that "[t]he words of a law must be given their generally prevailing meaning." Id. article 11 (previously articles 14 and 15 (1870)). This court, when interpreting our constitution, should give effect to language that is plain and unambiguous. Bank of New Orleans and Trust Co. v. Seavey, 383 So.2d 354 (La.1980), on remand, 399 So.2d 642 (La.App. 4th Cir.1981), writ denied, 401 So.2d 1196 (La.1981). Explicit constitutional provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning. State through Department of Highways v. Bradford, 242 La. 1095, 141 So.2d 378 (1962).

The cooperatives contend again, as they did in their original brief, that the words of article IV, § 21(B) are ambiguous. "When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law." C.C. 10. If the words of a constitution are indeed ambiguous, a court may resort to the transcripts of the constitutional convention proceedings as an aid to find the purpose, intent, and meaning of those words. New Orleans Firefighters Association v. Civil Service Commission of City of New Orleans, 422 So.2d 402 (La.1982).

The majority in our original opinion, 532 So.2d 1372, did not address whether article IV, § 21(B) is ambiguous, agreeing instead with the cooperatives' contention that the drafters did not intend to change the jurisdiction of the commission in the new constitution. Article IV, § 21(B), however, is unambiguous. It clearly states that the commission shall have jurisdiction over all common carriers and public utilities and have such other regulatory authority as provided by law. The cooperatives' contention that the phrase "as provided by law" modifies the commission's jurisdiction over common carriers and public utilities would result in a solecism. The adverbial phrase, "as provided by law," defines the conditions under which the commission shall have the "other regulatory authority" that the legislature may choose to grant.1

Since the provision is unambiguous, this court ought not base its decision on words used in argument at the convention proceedings but should instead rely on the product that the convention ultimately produced. City of New Orleans v. Scramuzza, 507 So.2d 215 (La.1987). The language that the voters of this state adopted granted, in mandatory language, constitutional jurisdiction to the commission over all common carriers and public utilities.2 The legislature cannot by statute modify that jurisdiction. City of Baton Rouge v. Short, 345 So.2d 37 (La.1977).

PUBLIC UTILITIES

If electric cooperatives are public utilities, then the commission has regulatory jurisdiction over them. In 1970, the legislature amended R.S. 45:121 to include electric cooperatives on the list of businesses classified as public utilities. 1970 La. Acts No. 34, § 1. Thus, at the time the 1974 constitution was drafted and adopted, electric cooperatives were statutorily defined as public utilities and were under the jurisdiction of the commission. See R.S. 12:426; Dixie Electric Membership Cooperative v. Louisiana Public Service Commission, 509 So.2d 1002 (La.1987). Electric cooperatives remain statutorily defined as public utilities. R.S. 45:121.3

Even though they are statutorily defined as being public utilities, the cooperatives contend that they are not the kind of public utility for which regulation by the commission was intended. Indeed, the constitution does restrict the commission's regulatory jurisdiction over one type of public utility, that being a utility owned, operated, or regulated by a political subdivision's governing body. La.Const. Art. IV, § 21(C). But neither the plain language of this constitution nor the record of the framers' debates indicates that the commission's jurisdiction over electric cooperatives should be curtailed. As noted above, the legislature defined cooperatives as public utilities at the time of the drafting and the adoption of the 1974 Constitution. Had the framers intended to except another kind of public utility from the commission's jurisdiction, they could have done so.4

In addition, the cooperatives' argument that they are not the kind of utilities intended to be subject to regulation is undercut by the very statute they seek to have upheld as constitutional. R.S. 45:1163(B) allows electric cooperatives to choose to have rates and services regulated by the commission under the provisions of R.S. 12:426. If the structure and function of these cooperatives were such that regulation were unnecessary, it would be illogical for the legislature to have exempted them from regulation in R.S. 45:1163(A) and yet provided for them to choose to be regulated in R.S. 45:1163(B) and R.S. 12:426.

PREEMPTION OF STATE REGULATION BY THE REA

In 1935, President Roosevelt established the Rural Electrification Administration (REA)5 in order to provide government loans at low interest rates to encourage electric service development in rural areas. As the Supreme Court has noted, the REA is a "lending agency rather than a classic public utility regulatory body...." Arkansas Electric Cooperative Corporation, 461 U.S. at 386, 103 S.Ct. at 1913. As such, it performs its role within state regulatory schemes. Id. Accordingly, state rate regulation of REA-financed cooperatives is not preempted by the Rural Electrification Act. Id. at 385, 103 S.Ct. at 1913.

ATTORNEYS FEES

Although the author of this opinion would decide the attorneys fees issue in favor of the commission,6 the majority has determined otherwise. The other justices of the court, three of whom subscribe fully to this opinion, and three of whom dissent on the jurisdictional issue but concur in the denial of the commission's claim for attorneys fees, conclude that the fee award should be denied for the following reasons.

The issue was decided in South Central Bell Telephone Co. v. La. Public Service Comm'n, 412 So.2d 1069 (La.1982), wherein it was determined that La.R.S. 45:1180 and 1181 did not authorize the commission to be reimbursed for attorney fees except in cases involving rate-making disputes. While La.R.S. 45:1180 and 1181 were amended by Act 561 of 1985, that amendment did not have the effect of broadening the types of cases in which the commission is entitled to attorney fee reimbursement. Instead, by amending R.S. 45:1180 and 1181, and enacting R.S. 45:1163.3, the Legislature created an economics and rate analysis division, and provided that in certain circumstances the commission could be reimbursed by parties examined by the economics and rate analysis division in rate-making matters. This case, a declaratory judgment action brought by the cooperatives, involves a jurisdictional dispute, not a rate-making examination by the economics and rate analysis division, so there is no statutory authority for an award of attorney's fees to the commission under these circumstances.

Therefore, the request of the commission to have the cooperatives cast for the fees that the commission incurred in defending this declaratory judgment action is denied.

DECREE

Accordingly, the opinion of this court on original hearing is vacated, and the opinion of the district court concerning the jurisdiction of the commission is affirmed. The opinion of the district court awarding attorneys fees to the commission is reversed, and each party will bear its own costs.

MARCUS, WATSON and COLE, JJ., would grant a rehearing.

LEMMON, J., subscribed to the opinion the concurring reasons of CALOGERO, J.

WATSON, J., dissented and assigned reasons.

CALOGERO, J., subscribed to the majority opinion and assigned additional concurring reasons.

DENNIS, J., assigned additional reasons.

COLE, J., dissented in part and concurred in part and assigned reasons.

DIXON, C.J., assigned dissenting reasons on attorney fee issue.

WATSON, Justice, respectfully dissents, adhering to the views expressed in the original opinion and noting the following language from South Cent. Bell Tel. Co. v. Louisiana, Etc., 412 So.2d 1069 (La.1982):

CALOGERO, Justice, subscribes to the majority opinion and assigns additional concurring reasons.

I join the majority opinion's holding that electric cooperatives are subject to the jurisdiction vested in the Public Service Commission by the Louisiana Constitution, as well as its determination that the Commission is not entitled to an attorney's fee award in this case. With respect to both of these issues, I assign the following additional reasons.

The Constitutional Issue

In South Central Bell Telephone Co. v. La. Public Service Comm'n, 412 So.2d 1069 (La.1982), the narrow constitutional question presented pertained to the power and authority of the Commission to "adopt and enforce reasonable rules regulations and procedures." Id. at 1072. That case involved a dispute over whether the Commission had either constitutional or statutory authority to charge attorney fees to South Central Bell for the Commission's intervention in a federal lawsuit in the United States Court of Appeal, D.C. Circuit. We did in that case note that the 1974 Constitution streamlined the language of the 1921 Constitution pertaining to the Commission. And in that case we did observe that the new constitutional article essentially provided the Commission the same powers and duties relative to the adoption and enforcement of rules, regulations and procedures that it had under the former constitution. Furthermore, in that same context (the dispute over attorney fees and the Commission's power to enforce rules, regulations and procedures), we quoted constitutional convention delegate Juneau expressing the intent "not to make any change whatsoever in the present authority and jurisdiction of the Public Service Commission." Id., quoting Volume IX, Records of the Louisiana Constitutional Convention of 1973 at 3008.

However, that case did not entertain the question presented here, i.e., the Commission's constitutional authority over electric cooperatives. When first we entertained that question after adoption of the 1974 Constitution, in Dixie Elec. Membership Co-op v. La. Public Service Comm'n, 509 So.2d 1002 (La.1987), we pretermitted the issue as unnecessary to the decision in the matter before us, while nonetheless observing that the Commission's argument for constitutional authority over cooperatives was persuasive. Id. at 1007.

In my dissenting opinion on original hearing in this case, I expressed the view that cooperatives are subject to the constitutional regulatory authority of the Commission for essentially two reasons: (1) because electric cooperatives were statutorily defined as public utilities at the time that the convention delegates adopted Art. IV § 21(B) of the 1974 constitution, giving the Commission exclusive regulatory authority over "all common carriers and public utilities," and (2) because I found "no contrary intention" in the constitutional convention debates, i.e., no expressed intention not to have the cooperatives subject to the jurisdiction of the Commission under Art. IV § 21(B).

Although I generally adhere to the views expressed in my dissent on original hearing and join in the majority's disposition of this issue on rehearing, I now believe that the result reached on rehearing is supported by considerations not fully addressed in my original dissent, considerations which I take the opportunity to address here.

Regarding the intentions of the delegates to the constitutional convention, I believe that the records of the convention debate are simply not dispositive on this issue. It is true, as noted in South Central Bell, and by Justice Cole's separate opinions in this case, that Delegate Juneau and others stated at various points during the debate that Art. IV § 21(B) was not intended to effect a change in the law as regards the authority and jurisdiction of the Commission. However, these delegate statements were made in the context of a general debate over whether the Commission should have inherent constitutional authority to regulate common carriers and public utilities, or whether all authority of the Commission to regulate common carriers and public utilities should be subject to legislative approval.

As noted in footnote two of the majority opinion on rehearing, delegate Juneau and others feared that the wording of Art. IV § 21(B), as originally proposed (giving the Commission authority over "all common carriers and public utilities as provided by law ") would strip the Commission of all of its constitutional authority and make all of its regulatory authority dependent upon the Legislature. Delegates Juneau and Arnette argued that, as worded in the proposal, the provision would effect a major change in the law, eliminating in all respects the constitutional regulatory power which the 1921 Constitution provided to the Commission. The convention delegates then passed Juneau's amendment changing Art. IV § 21(B) to its present form, providing the Commission authority over "all ... public utilities." The adoption of this amendment prevented a major change in the law (making all constitutional authority of the Commission subject to legislative control), and provided the basis for statements by delegates such as Juneau to the effect that as amended, the article would not effect a change in the Commission's jurisdiction.

Leaving aside this general debate over whether the Commission should have constitutional authority to regulate common carriers and public utilities (as opposed to having their authority subject to legislative control), I find no discussion or consideration by the delegates of the issue which is presented by this case: whether the adoption of Art. IV § 21(B), providing the Commission with regulatory authority over "all... public utilities," had the effect of subjecting to the Commission's regulatory authority those public utilities which were not specifically designated by the 1921 Constitution (as public utilities subject to the Commission's regulatory authority). Nor was there consideration or discussion of the type of entity which falls within the category of "public utilities." Nowhere were the references to not changing the authority and jurisdiction of the Commission made with reference to whether cooperatives were or were not public utilities or were or were not now subject to the Commission's jurisdiction.

Notwithstanding the aforementioned language in South Central Bell, discussed in the context of a different issue, and notwithstanding the remarks of some convention delegates during a debate over an issue not presented here, it is an inescapable conclusion that Art. IV § 21(B) did change the law in at least one significant respect. Under the 1921 Constitution, the Commission was given constitutional authority over only those types of public utilities and common carriers specifically delineated in Art. VI § 4. As Justice Dennis stated in his dissenting opinion on original hearing, the 1974 constitutional provision, by eliminating the reference to specific types of carriers and utilities and generically providing that the Commission shall regulate all public utilities, "represents a marked shift in philosophy from the 1921 Constitution's public service commission section."

The import of this change is self-evident. The common carriers and public utilities subjected to the Commission's constitutional authority are no longer defined by the Constitution itself. Rather, the determination of what types of businesses fall within the generic phrase "all ... public utilities" must be made by the courts. And we surely cannot resolve this issue properly on the simplistic assumption that the term "public utilities" as used in the 1974 Constitution includes only those public utilities which the 1921 Constitution specified as subject to direct regulation by the Commission, primarily because electric cooperatives did not exist in 1921, and also because if the delegates had intended the definition of "public utilities" to be so limited, presumably they would have said so (which they easily could have done through a verbatim reenactment of the 1921 Constitution).

Justice Cole's dissent on this issue rests on the premise that, in reality, we are still to be governed by Art. VI § 4 of the 1921 Constitution, for the reason that Art. IV § 21(B) of our present constitution is but a shorthand reenactment of the 1921 provision. This premise I do not accept. The 1974 provision is different in content and construction, and our task in this case has been to interpret the extant meaning of that provision.

In attempting to interpret the meaning of that provision it is appropriate to look at both the definition of "public utility," and existing legislation which in 1974 defined electric cooperatives as public utilities. Consideration of both of these factors leads me to the conclusion that the constitutional phrase "all ... public utilities" includes electric cooperatives.

First of all, it is apparent that electric cooperatives do in fact share the common characteristics possessed by public utilities. While the term public utility perhaps has no precise definition, the majority opinion on rehearing (footnote 3) notes that the most common characteristics of such an entity include: providing a service essential to the public interest, providing that service to all who apply, at reasonable and non-discriminatory prices, and providing a service the nature of which lends itself to monopolization. A company which provides the essential service of home and business electrical power is a public utility in the most conventional sense that the term is used. F. Welch, Cases and Text on Public Utility Regulation at 2 (1968).

It has been argued that because cooperatives are privately owned by the users of the electricity, they need not be subject to the same degree of governmental regulation required for investor-owned electric utilities. Assuming, arguendo, that this is true, it is irrelevant for the purposes of the issue at hand. Even if cooperatives, due to differences in ownership or management structure, require less regulation than other types of public utilities, that does not mean that they are not public utilities in the first instance. As one commentator has noted, the inquiry into whether a company is a public utility turns upon the nature of the services provided by that company, not the structure of its management or ownership. See Welch, Cases and Text on Public Utility Regulation, supra at 4 ("the term `public utility' ..., by itself, ... refers only to the nature of the business, not to its ownership or operation.") Furthermore, the 1974 Constitution makes no distinction, based on the amount of governmental regulation needed or otherwise, between kinds of public utilities, but simply provides that they all shall be regulated by the Commission.

Secondly, at the time that the 1974 constitutional provision was enacted, electric cooperatives were treated by statute as public utilities subject to the regulatory authority of the Commission. I agree with Justice Dennis that a legislative act cannot define a constitutional phrase, and therefore do not suggest that the existence of the legislative acts is dispositive of the overall issue. Yet in attempting to determine whether cooperatives are "public utilities," I find the fact that the Legislature had chosen to define them as such, a persuasive indication that a cooperative is in fact the type of entity traditionally considered to be a public utility. Furthermore, the fact that electric cooperatives had been statutorily defined as public utilities for three years prior to the adoption of the new constitutional provision could hardly have been a secret to the delegates to the constitutional convention.

The foregoing considerations convince me that electric cooperatives are subject to the Commission's constitutional authority to regulate "all ... public utilities," and therefore I join the majority's ruling on that issue.

Attorney Fees

As noted at the outset of this opinion, I join the majority's decision to deny the Commission's claim for attorney fees in this case.

The minority view on this issue, set forth by Chief Justice Dixon in footnote six to the majority opinion, is that 1985 La. Acts 561, § 1 effected a change in the law by broadening the types of cases or legal disputes under which the Commission is entitled to recover a fee award. The implication of this argument is that Act 561 was designed to overrule or modify our holding in South Central Bell, wherein we held that La.R.S. 45:1180 and 1181 did not authorize a fee award to the Commission in a case that did not involve a rate making dispute. I strongly disagree with these arguments.

At the time South Central Bell was decided (1982), La.R.S. 45:1180 permitted the Commission to retain special counsel "in rate making cases or the judicial review thereof," and La.R.S. 45:1181 provided that "counsel may be retained and fees certified (1) to evaluate and review proposed rate increases, and (2) to represent the Public Service Commission in rate making cases or the judicial review thereof."

The title of Act 561 of 1985 recites that its purpose is "to create an economics and rate analysis division of the Public Service Commission" and "to provide for employing consultants and attorneys to assist the economics and rate analysis division; [and] to provide for payment of such services." (Emphasis added). To accomplish these purposes, Act 561 enacted a new statute, La.R.S. 45:1163.3, and amended two existing statutes, La.R.S. 45:1180 and 1181.

La.R.S. 45:1163.3(A) provides for the creation of the economics and rate analysis division "[i]n order to assist the commission in making an examination of the affairs of any person doing a public service or public utilities business in Louisiana concerning matters affecting services and rates charged Louisiana consumers ...." Section 1163.3(B) empowers the Commission to hire outside counsel "[i]f the staff of the economics and rate analysis division is unable or insufficient to assist the commission in ... matters affecting services and rates...."

As amended, La.R.S. 45:1180 and 1181 further define and restrict the circumstances under which the economics and rate analysis division may retain outside counsel and may be reimbursed for outside counsel's services by a party examined in a rate making dispute. Section 1180 provides that "[a]ttorneys or special counsel may be retained by the commission to assist the economics and rate analysis division for the purpose of evaluating and reviewing matters affecting services and rates charged by public utilities to Louisiana consumers and for representing the Public Service Commission in such cases or the judicial review thereof." Section 1181 further provides that the Commission "shall employ only such ... attorneys or special counsel... as are actually necessary to assist the economics and rate analysis division in conducting the examination," and that compensation for attorney services "shall be fixed according to the time actually devoted to the work of conducting the examination and making reports thereon...."

Under these three statutes (newly enacted § 1163.3 and §§ 1180 and 1181, as amended), the only instance in which the services of outside counsel may be retained, much less charged to a third party, is when legal assistance is required by the economics and rate analysis division. By statute, that division's function is to handle rate-making examinations for the commission, and outside attorneys may be retained only as "actually necessary to assist the economics and rate analysis division in conducting the examination." La.R.S. 45:1181.

It is undisputed that this case does not involve a rate making examination by the economics and rate analysis division. This is a jurisdictional dispute between the cooperatives and the Commission. There is no statutory basis for authorizing payment of attorney fees to the Commission under these circumstances, just as there was no statute which authorized the fee award sought in South Central Bell. I find nothing in the plain wording of the statutes which even hints that Act 561 was intended to overrule or modify our holding in South Central Bell, and no legislative history supporting such an intention has been cited. To the contrary, it appears that the purpose of Act 561 was simply to create an economics and rate analysis division for the stated purposes of handling rate making examinations, and to continue in force the provisions of §§ 1180 and 1181 which, both before and after Act 561, authorized the Commission to retain and be compensated for outside attorney services in rate making disputes.

Finally, one of my dissenting brethren argues in his concurring and dissenting opinion that there is "irony" and a "fundamental fallacy" in the majority's decision to deny an attorney fee award based upon its interpretation of the pertinent statutes, while at the same time holding that the Legislature has no power to restrict the constitutionally based regulatory authority of the Commission. This argument ignores the fact that there is no constitutional authority for the Commission to collect attorney fees, as we explicitly held in South Central Bell, supra. So any such authority must be provided by statute, and the statutes relied upon by the Commission do not apply to this case. On the other hand, the question of whether the Commission has constitutional authority to regulate electric cooperatives is a matter separate and distinct from whether the Commission may charge or be entitled to attorney fees. It is simply not contradictory for the majority to conclude that while the Commission has constitutional authority to regulate cooperatives, it has no authority, by the constitution under any circumstances or by statute in this particular case, to collect attorney fees. The simple fact is that the Commission has no constitutional authority regarding attorney fees. So the majority's determination that the statutes do not permit a fee award in this case cannot logically be interpreted as inconsistent with its separate determination that the Commission has regulatory power over the cooperatives that is based in the constitution.

DENNIS, Justice, expressing additional reasons.

I join in the majority opinion on rehearing for the reasons expressed therein and also for the reasons expressed in my dissenting opinion on original hearing. The constitutional grant of regulatory powers to the public service commission over all common carriers and public utilities is an exception to the plenary power of the legislature. Consequently, legislatively enacted rules of statutory construction and former legislative treatment of cooperatives as entities subject to regulation cannot affect this court's separate, independent and exclusive judicial power to interpret the constitution's meaning of "common carrier" or "public utility". Therefore, I construe the court's discussion of legislated law to be analogical and supplementary, and not essential, to its opinion.

COLE, Justice, dissenting in part and concurring in part.

At the beginning of its opinion, the majority notes that under the Civil Code "when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written...." La.C.C. art. 11 (emphasis added). If, as the majority asserts, the provisions of La. Const. Art. IV, sec. 21(B) are "unambiguous," it is difficult to understand why this Court has been compelled to hear this matter twice and why it has arrived at two contradictory conclusions. Moreover, the majority's result leads to consequences that may be termed "absurd," and these future difficulties are foreshadowed by the logical inconsistencies of the majority opinion. Accordingly, I respectfully dissent on the jurisdictional issue.

The linchpin of the majority opinion is, unfortunately, a logical paradox. In footnote 3, the majority states: "[W]e base our decision in this case on the existence since 1970 of a legislative definition of electric cooperatives as public utilities...." In virtually the same breath, however, it concludes the 1974 Constitution "removes the ability of the legislature to alter the commission's jurisdiction" because of the "plenary authority" of the Public Service Commission. At 363. The majority does not explain how the legislature can be at once the source of the commission's regulatory jurisdiction over cooperatives and at the same time powerless to legislate on this question under the constitution because the commission is the sole power. The rest of the majority opinion constitutes an attempt to justify this initial fallacy.

The majority opinion attempts to resolve this fundamental paradox by the argument that the 1974 Constitution somehow "froze" the extant legislation concerning commission jurisdiction over electric cooperatives into Article IV, sec. 21(B). Several factors militate against such a conclusion.

Most significantly, neither the language nor the history of Section 21(B) reflects any intent to lock the existing statutory regulatory scheme into the constitution. The majority is correct when it notes the framers sought to preserve the "status quo" in Art. IV, sec. 21(B). It is obvious, however, that the status quo to be preserved was the allocation of power between the commission and the legislature under the 1921 Constitution, not the statutory regulatory scheme in place in 1973. As Justice Calogero observed in South Central Bell Telephone Co. v. Louisiana Public Service Comm'n, the 1974 Constitution "streamlined" the language of the 1921 Constitution but the power, authority and duties of the Public Service Commission remained unchanged. 412 So.2d 1069, 1072 (La. 1982). Delegate Juneau, who proposed the language that became Section 21(B), and upon whose remarks the majority places great weight, made this abundantly clear:

IX Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts 3347 (105th Days Proceedings; December 20, 1973). In 1978, the legislature exercised "the same authority under this amendment" to again exempt the rural electric cooperatives from commission control.1

The majority's holding that the 1974 Constitution elevated an existing statutory scheme to the level of constitutional law represents a frightening and unprecedented aberration in constitutional interpretation. The plain language of sec. 21(B) does not support this claim, nor does the history of the constitutional convention debates. Absent any such authority, I can find no precedent in our jurisprudence for finding that because the commission had jurisdiction over the cooperatives by virtue of a legislative act in existence in 1974, the legislature is powerless to enact legislation altering its prior enactment.

Does the majority opinion not prevent the legislature from altering its own prior enactment? Logically speaking, it does.2 Yet, can anyone seriously contend the legislature does not have the plenary power to amend its prior enactment concerning cooperatives? Nowhere in the Constitution is the legislature prohibited from doing so. Absent clear and convincing evidence that it was the constitutional aim to deny the legislature the power to modify the law in existence in 1974, our jurisprudence clearly establishes the legislature retains this power. See Board of Directors of Louisiana Recovery District v. All Taxpayers, Property Owners and Citizens of the State of Louisiana, 529 So.2d 384, 387-388 (La. 1988) (per Dennis, J.).

Equally unpersuasive is the majority's reliance on the fact that the framers of Article IV, sec. 21(B) did not expressly exempt electric cooperatives from commission jurisdiction.3 It is similarly undisputed that the framers did not expressly define cooperatives as public utilities and place them under the commission's constitutional jurisdiction. The argument from silence cuts both ways. Where the Constitution is silent, the otherwise plenary power of the legislature prevails. As we observed in Guillory v. Department of Transportation and Development: "It is a fundamental principle of judicial interpretation of state constitutional law that the legislature is supreme except when specifically restricted by the Constitution." 450 So.2d 1305, 1308 (La.1984); see also Board of Directors of Louisiana Recovery District, supra.

In seizing upon the 1970 statute granting the commission regulatory power over cooperatives to justify its result in this case, the majority ignores prior decisions of this Court. In Central Louisiana Electric Co. v. Louisiana Public Service Comm'n, 251 La. 532, 205 So.2d 389 (1967), we held electric cooperatives were not subject to the commission's inherent power under the 1921 Constitution. Accord, Central Louisiana Electric Co. v. Louisiana Public Service Comm'n, 253 La. 553, 218 So.2d 592 (1969). In South Central Bell Telephone Co., supra, we held the 1974 Constitution did not change the authority of the Public Service Commission. 412 So.2d at 1072. Justice Calogero noted: "While the language in the 1974 Constitution is different from that in the 1921 Constitution, there was no intention on the part of the delegates to the 1973 Constitutional Convention, nor on the part of the citizens of the state who voted to adopt the 1974 constitution to change the authority of the Public Service Commission." Id. Since the commission therefore had no inherent authority over cooperatives under the 1921 Constitution, and since the 1974 Constitution did not change the authority of the commission, it follows logically that the commission has no inherent, "plenary" authority over electric cooperatives under the 1974 Constitution. The majority does not rebut or even confront this formidable obstacle; it simply ignores it.

The majority opinion also fails to address the problem of the commission's acquiescence in the legislature's decision to exempt electric cooperatives from commission jurisdiction. From 1970 to 1978, the commission regulated cooperatives under a statutory grant of power. By 1978 La. Acts 77, the legislature went back to the pre-1970 regulatory scheme and exempted the cooperatives from commission control under the conditions set out in the statute.4 From 1978 to 1987, the commission acquiesced in the legislature's decision. In several letters to the cooperatives that are in the record below, the commission disclaimed regulatory jurisdiction over them on the basis of R.S. 45:1163. This Court has previously found that such acquiescence in an established regulatory scheme by the alleged regulator is persuasive evidence of the correctness of the existing regulatory plan. See State v. City of New Orleans, 151 La. 24, 91 So. 533 (1922).5 Here, we are asked to "discover" a new source of plenary power in the commission, yet the majority fails to address the issue of its acquiescence for 10 years in the legislative enactment it now challenges.6

In light of the logical fallacies generated by the majority in its attempt to justify its result by constitutional analysis, it is small wonder that it descends into the murky realms of public policy and regulatory economics in an attempt to justify its conclusion. The majority implicitly rejects the finding of the Utah Supreme Court in the seminal Garkane decision,7 i.e., that regulation of electric cooperatives is not necessary because of the identity of interests between producer and consumer. But the majority offers no countervailing analysis. The Garkane court's economic observations are borne out by the record in this case which shows the high degree of managerial control exercised by the members of the cooperatives before us. The majority does not discuss the managerial and economic picture presented in this case. Rather, it decides, on a theoretical level, that pervasive government regulation of electric cooperatives is necessary to attain some abstract "good."

The majority then attempts to piggy-back its policy determinations onto its constitutional analysis by stating it declines to second-guess the judgment of the constitutional framers who did not expressly exempt cooperatives from commission jurisdiction. The circle is complete and the majority is left with the weak argument from silence criticized above.

* * * * * *

As regards the issue of attorney fees, I concur with the decretal portion of the opinion reversing the award by the trial court. The opinion, as originally presented to the court by its author, proposed the language now relegated to footnote six. A signatory to the jurisdictional issue, apparently seeking to bolster the opinion by avoiding the necessity of dissenting in part, sought the inclusion of the material now in the body of the opinion. This cosmetic effect nonetheless leaves only three justices of the "majority" adhering to the denial of fees. Although a majority has finally adopted the view of the attorney fee issue to which I have consistently adhered throughout the pendency of this matter before the court, the fundamental fallacy in the majority's analysis of the jurisdictional question remains.

With no apparent sense of irony, this court decides the legislature has the power to restrict the commission's assessment of attorney fees by statute, while at the same time the court holds the same legislature has no authority to statutorily limit the commission's "plenary authority" to regulate electric cooperatives.8 This tension between the positions is almost palpable and underscores the weakness of the majority's position on the jurisdictional issue. Justice Calogero, in his additional concurring reasons, makes a vain attempt to reconcile this central paradox of the majority opinion. His efforts fail because if the commission's regulatory power is "plenary" as the majority asserts, it does not need additional explicit constitutional authority to tax its attorney fees by fiat. To conclude otherwise is to rob the phrase "plenary authority" of meaning and remove the main support for the majority's conclusion on the constitutional issue. Faulty, post hoc rationalizations to justify a predetermined result are no substitute for logical reasoning. In addition, if there is any question as to how the Public Service Commission interprets its "plenary authority" in the context of legislative enactments, one need only observe its actions with respect to the Public Records Act. See, f.n. 10 of these reasons, infra. It obviously does not believe its "plenary authority" pertains only to its regulatory jurisdiction.

Assuming, arguendo, that R.S. 45:1163.3 and 45:1180-1181 are still constitutionally sound, these statutes do not justify taxing the membership of the plaintiff cooperatives with the commission's attorney fees. To so hold would be to ignore the declaratory nature of the relief requested. All the cooperatives sought was a declaration on the constitutionality of a statute: R.S. 45:1163. R.S. 45:1180-1181 only permit the commission to tax attorney fees in "investigations" by the commission's "economics and rate analysis division" in "matters affecting services and rates." The relationship between the threshold question of the constitutional, declaratory judgment action and electric services and rates is extremely tenuous.9

It is clear from the record that the fees counsel for the commission seeks were not incurred in the course of "an examination of the affairs" of these cooperatives "concerning matters affecting services and rates." R.S. 45:1180(A). Mere intent to regulate is insufficient. The commission incurred the fees while seeking to have R.S. 45:1163 declared unconstitutional in a suit seeking a declaration of constitutionality filed by the cooperatives. The fees to be taxed must also be incurred to "assist the economics and rate analysis division" in conducting this "examination." Id. Counsel for the commission admitted the commission's "economics and rate analysis division" does not exist in reality. Finally, it is circular to say that fees are properly taxed to the cooperatives since the cooperatives are public utilities under the plenary jurisdiction of the commission. That was the question presented in this declaratory judgment action; it does not involve matters relating to services or rates.

R.S. 45:1181 is properly read in pari materia with R.S. 45:1180, and it imposes additional restrictions on the commission's power to tax fees. Under R.S. 45:1181, the attorneys employed to assist the economics and rate analysis division must be "actually necessary" to the "examination." Furthermore, the compensation due these outside employees depends on time spent "conducting the examination and making reports thereon" or "as participants in any judicial review of the examination or reports." R.S. 45:1181(A). In this case, the attorneys for the commission claim fees for the litigation of the threshold jurisdictional question; no "examination" of the cooperatives has taken place nor have "reports" been prepared. Furthermore, this is not a case involving judicial review of a commission "examination" since no "examination" has taken place. Accordingly, R.S. 45:1181 does not authorize the taxing of fees given the procedural posture of this matter.

R.S. 45:1181 requires that the fees be "reasonable." At present, three attorneys have allegedly been employed by the commission and they have incurred fees in excess of $100,000.00. These fees, which will be passed on to consumers, have not been subjected to close judicial scrutiny as to their "reasonableness." Nor has it been demonstrated that the services are "actually necessary to assist the economics and rate analysis division" in an "examination" of the cooperatives. R.S. 45:1181(A). Likewise, it has not been demonstrated that the three attorneys are "actually necessary." The cooperatives properly filed a Rule under R.S. 45:1181(B) challenging the fee assessment. This Court, under its authority to regulate the practice of law, has seen fit to question the reasonableness of attorney fees sought in other cases. See, e.g., City of Baton Rouge v. Stauffer Chemical Co., 500 So.2d 397 (La.1987); Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982). This Court certainly owes it to the consumers who must ultimately pay the substantial fees involved here to subject these fees to close judicial scrutiny. For all these reasons, I agree that the commission has no authority to tax its attorney fees to the plaintiff cooperatives.

* * * * * *

The logical problems that mark the majority opinion are an inevitable consequence of the result it strives to reach. By concluding the commission's power over electric cooperatives is at once the product of a 1970 legislative act and at the same time the product of the commission's "plenary authority" under the 1974 Constitution, the majority sets out a self-contradictory proposition. In such a situation, one should examine the soundness of one's premises since both cannot be true.

The majority seems oblivious of the potential sweep of its holding in this case. The constitutionality of virtually all legislation pertaining to the Public Service Commission is highly suspect in light of the majority's newly discovered "plenary authority." At the same time, however, the majority relies on statutes that conflict with the commission's "plenary" power in denying attorney fees to counsel for the commission. This opinion raises more questions than it answers. Do the protections of the Louisiana Public Records Act apply to the Commission?10 Are the other provisions of Title 45 of the Revised Statute relating to public utilities and common carriers valid or do they fall before the "plenary authority" of the commission?11 This Court will be forced to resolve these and other troublesome questions in light of the grim spectre raised by this opinion of a "Fourth Branch of Government" not subject to any legislative act it deems contrary to its "plenary authority." These are but a few of the "absurd consequences" that result from the majority's reading of Article IV, sec. 21(B).

The majority's decision is contrary to settled rules of constitutional interpretation. It is logically inconsistent, unsupported in light of statutory and jurisprudential law, and unsupported by the record in this case. Accordingly, I am compelled to dissent.