The opinion of the court was delivered by
The parties, Leavenworth-Jefferson Electric Cooperative, Inc.,
(Leavenworth-Jefferson) and The Kansas Power and Light Company
(KP&L), have appeared before us with the intention
of testing the constitutionality of a section of the Retail
Electric Suppliers Act (RESA), K.S.A. 66-1,170 et seq. The
focus of Leavenworth-Jefferson's claim of unconstitutionality
centers on K.S.A. 1989 Supp. 66-1,176. Its route to this court
included: (1) briefing and argument before the Kansas Corporation
Commission (KCC), resulting in an order adverse to
Leavenworth-Jefferson, the plaintiff-appellant; and (2) a trial
to the district court of Shawnee County on judicial review of the
KCC order also resulting in an order adverse to
Leavenworth-Jefferson. The KCC found that it did not have
authority to interpret constitutional issues. The district court
upheld the constitutionality of K.S.A. 1989 Supp. 66-1,176.
The controlling question is whether we should resolve
Leavenworth-Jefferson's constitutional challenge to K.S.A. 1989
The record discloses that Leavenworth-Jefferson, by its actions
in settling its controversy with KP&L and in accepting benefits
under the statute, is disqualified from asserting a
constitutional challenge to K.S.A. 1989 Supp. 66-1,176. We
decline to resolve the challenge. We dismiss the appeal.
KP&L, respondent-appellee, is an investor-owned utility which
transacts the business of an electric utility in the city of
Tonganoxie, Kansas. Leavenworth-Jefferson is a member-owned,
rural electric cooperative. It operates under the laws of the
State of Kansas and under the auspices and control of its lender,
the Rural Electrification Administration, Department of
Agriculture, Washington, D.C. Pursuant to the terms of RESA,
K.S.A. 66-1,170 et seq., the KCC had previously granted
Leavenworth-Jefferson a service territory that included the
undeveloped tract annexed by the City of Tonganoxie by Ordinance
No. 774. Prior to annexation, Perma-Span, a building
manufacturer, became the owner of the undeveloped tract. This
tract was then annexed by Tonganoxie on the petition of
Perma-Span, the sole owner.
KP&L was the franchise holder providing electric service in
Tonganoxie. Immediately following the annexation of the
undeveloped tract, Leavenworth-Jefferson submitted information on
rates and applied to Tonganoxie for a franchise to serve the
annexed territory. KP&L also submitted rate information for the
City's review. The City voted to allow KP&L to serve the newly
annexed territory under KP&L's existing franchise.
Approximately six months later on April 14, 1988, KP&L and
Leavenworth-Jefferson executed an agreement for compensation to
be paid to Leavenworth-Jefferson pursuant to K.S.A. 1989 Supp.
After the passage of more than 180 days from the date of the
annexation by Tonganoxie, KP&L applied to the KCC for a
certificate of convenience and authority to service the annexed
area. Leavenworth-Jefferson protested KP&L's application. The KCC
found that Leavenworth-Jefferson did not hold a franchise from
the City to serve the annexed territory and granted the
certificate to KP&L as required by K.S.A. 1989 Supp. 66-1,176.
The Constitutional Claims
Leavenworth-Jefferson asserts that K.S.A. 1989 Supp. 66-1,176
is unconstitutional because it violates:
(1) the due process clause of the Fourteenth Amendment to the
Constitution of the United States by taking property unreasonably
without notice or an opportunity to be heard;
(2) art. 2, § 1 of the Constitution of the State of Kansas by
delegating matters of statewide concern to a political
(3) the supremacy clause of the United States Constitution.
U.S. Const., art. VI, cl. 2.
Leavenworth-Jefferson also claims, as does amicus curiae
Sunflower Electric Power Corporation, that the United States,
which is not a party to ...