Alabama Power Co. v. Southern Pine Electric Cooperative

PER CURIAM. The causative facts of this litigation and the decree under review are fully described in the dissenting opinion of Justice SIMPSON and need not be included herein. In disagreeing with the decree of the trial court it is sufficient for us to say that we do not believe that the provisions of § 332, Title 48, Code of 1940, should be now construed by the courts as requiring certificates of public convenience and necessity in order to engage in the activities of the kind shown by this record to have been carried out by the Alabama Power Company. We take this position because the record shows that the Alabama Public Service Commission has never acted to require such a certificate even though utilities including the Alabama Power Company have in the past filed with the Commission reports showing similar activities. In view of the widespread activities of the kind here involved without the issuance of certificates of convenience and necessity by the Alabama Public Service Commission, we are of the opinion that if such certificates are now to be required the Legislature should clearly so provide. We conclude, therefore, that the decree of the trial court should be reversed and the cause remanded. Reversed and remanded. LIVINGSTON, C. J., and LAWSON, STAKELY, GOODWYN and MERRILL, JJ-, concur.