COTTONWOOD MALL SHOP. CTR., INC. v. Utah Power & Light Co., 474-69.

• Decision Date: 10 May 1971
• Docket Number: No. 474-69.,474-69.
• Citation: 440 F.2d 36
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: COTTONWOOD MALL SHOPPING CENTER, INC., a Utah corporation, Plaintiff and Appellant, v. UTAH POWER & LIGHT COMPANY, a Maine corporation, Defendant and Appellee. UTAH POWER & LIGHT COMPANY, a Maine corporation, Third-Party Plaintiff and Appellee, v. Sidney M. HORMAN, Veoma H. Horman, Horman Development Company and Horman Investment Company, Third-Party Defendants and Appellants.

440 F.2d 36 (1971)

COTTONWOOD MALL SHOPPING CENTER, INC., a Utah corporation, Plaintiff and Appellant, v. UTAH POWER & LIGHT COMPANY, a Maine corporation, Defendant and Appellee.

UTAH POWER & LIGHT COMPANY, a Maine corporation, Third-Party Plaintiff and Appellee, v. Sidney M. HORMAN, Veoma H. Horman, Horman Development Company and Horman Investment Company, Third-Party Defendants and Appellants.

No. 474-69.

United States Court of Appeals, Tenth Circuit.

March 12, 1971.

Rehearing Denied May 10, 1971.

Brigham E. Roberts, Rawlings, Roberts & Black, Salt Lake City, Utah, for appellant.

Marvin J. Bertoch and Thomas A. Quinn, Salt Lake City, Utah (Ray, Quinney & Nebeker, Sidney G. Baucom and Robert Gordon, Salt Lake City, Utah, with them on the brief), for appellees.

Before LEWIS, Chief Judge, JOHN R. BROWN, Chief Judge^*, and SETH, Circuit Judge.

BROWN, Circuit Judge.

Through the wide door of a federal antitrust suit we back into an earth-bound, Utah-bound Erie problem of statutory construction since the thrusters on the alternative due process claim cannot orbit it to a constitutional apogee. In more austere terms the question is whether a shopping center operator in supplying electricity to the lessee merchants becomes subject to regulation as a public utility. The Court below answered in the affirmative, and we affirm.

Cottonwood,¹ owner and operator of a large shopping center in the trade area of Salt Lake City sued Power Company² alleging that Power Company had attempted to monopolize the market for electrical power at the Center and had interfered with existing contracts of Cottonwood to provide electricity for J. C. Penney Company, a tenant on the Mall. The basic question is put in issue by the defense that Cottonwood lacks the necessary Certificate of Public Convenience from the Utah Public Service Commission and therefore cannot challenge these economic activities of Power Company.³ The Court below gave summary judgment to Power Company on the ground that Cottonwood would need a Certificate before it could press its claims, for if it had no right to sell electricity, then by definition Power Company could not interfere with this "right."

This brings into play the Utah statutory structure of utility regulation which starts with the traditional requirement of a Certificate of Public Convenience⁴ for a broad range of businesses including an "electrical corporation" which is broadly defined⁵ as is "public utility"⁶ generally. The decision turns on the exception whether Cottonwood distributes the electricity "i through private property alone, i. e., property not dedicated to public use, ii solely for his own use, or the use of his tenants * * *." And we zero in on factor ii.

Cottonwood Mall is a large shopping center in the Salt Lake City trade area. The Center lies under one roof and contains a complex of stores and buildings surrounding a Mall. Cottonwood owns all of the property on the Mall as well as the parking area around the buildings except for the Eldridge Furniture Company building that Eldridge is buying from Cottonwood under a Utah Uniform Sales Agreement.⁷ Except for the Eldridge building, all of the space in the Center is presently leased to about seventy tenants under written leases. The tenants share the expenses of lighting the parking lot and the exterior of the buildings, for painting the automobile parking stalls, for sweeping and cleaning the parking area, and for maintaining the green areas in the Center.

The merchants of Cottonwood Mall have organized a non-profit corporation whose purpose it is to promote business on the Mall and to determine the extra-commercial promotional activities that should be conducted there. These activities will, in the jargon of the shopping center world, generate traffic to the Center with the hope, if not expectation, that many will then or later become customers of some or all of the merchants. The Board, consisting of persons elected by the merchants (who pay substantial dues based on square footage) and of the President of Cottonwood, must approve any such outside activities on the Mall. In the past the Board has authorized a whole gamut of activities including automobile shows, small car races, sidewalk sales, garden shows, boat shows, stamp shows, Indian dances, a circus, art displays, and handicraft shows.⁸ Also, the auditorium at the Center has been used by many religious, civic, social and political groups to hold gatherings, dances, and the like, a large number of which took place after store closing hours.

The controversy here arose when in 1968 — seven years after the contract was made with Power Company — Cottonwood decided to furnish electrical power to the tenants on the Mall as part of a total energy plan. It constructed an energy plant just to the south of the Center and has gone through some elaborate procedures to make the system workable. The plant,⁹ as well as all ducts and wires from it to the Mall, are on contiguous private property owned by Cottonwood. Cottonwood has expended about one and one-half million dollars¹⁰ to provide this capacity and intends to furnish the power only to itself and to the tenants of Cottonwood Mall, not to other elements of the general public.¹¹ The charges for the electrical power, heating and air conditioning will be included in the rental rates of the tenants.

We begin our analysis by recognizing that there are few if any Utah lampposts to light our Erie way. But as this is a case in which there is no specific "state law,"¹² we need not be dismayed since the Federal Court may look to all resources¹³ including "the decisions of other states, federal decisions or the general weight of authority," the goal being "that the federal court reach the result that would probably be reached were the question to be litigated in a state court." 1 Barron and Holtzoff, Federal Practice and Procedure, § 8 at 40 (Wright ed.1961).

The analysis begins with the long-ago, but still pertinent, declaration of the Utah Supreme Court on the underlying policy of public utility regulation. In Gilmer v. Public Utilities Commission, 1926, 67 Utah 222, 247 P. 284, that Court pointed out that though competition was usually a desirable goal, the states had found the case to be otherwise in the public utility field. The states felt it more suitable to put these activities under closely controlled, state granted monopolies. This means that in construing these statutes — which of course expressly cover the physical operational activities of Cottonwood — we must give a liberal reading to provisions subjecting the activity to regulation while simultaneously giving a more narrow scope to the exceptions.

Two factors lead us to the conclusion that Utah would hold Cottonwood to be subject to regulation and hence not within the sole use of tenants' exception. The first is the historical development of the statutory structure. The second is the nature of the activities in which the beneficial use of the electric power goes way beyond that of the tenants alone.

Substantial changes have been made in the 1917 version¹⁴ of § 54-2-1(20) as note 5, supra reflects. The key interpretation of this section of the statute is Garkane Power Company v. Public Service Commission, 1940, 98 Utah 466, 100 P.2d 571. Following the reasoning of State ex rel. Public Utilities Commission v. Nelson, 1925, 65 Utah 457, 238 P. 237, Garkane held that a public utility is a business that held itself out to serve the public generally and not one that limited its customers to a certain defined group.¹⁵ The Court, considering whether the statute applied to electrical cooperatives that supplied electrical power to their own members only, held that the regulatory powers of the Public Service Commission did not apply to these cooperatives even though access to the cooperatives was open to almost anyone who applied and who paid a very nominal fee.

But in our Erie effort of divination this is of little help. First Garkane dealt with the "furnishing electric power for public use" section of the 1917 version of § 54-2-1(20). See note 14, supra. Here the controversy hinges on the exception to the statute concerning distribution "solely for his own the distributor's use, or the use of his tenants." Neither this part of § 54-2-1(20) nor its 1917 predecessor has ever been the subject of judicial interpretation in Utah.

Furthermore whatever light Garkane had cast on the legal concepts of "public" and "private" that underlie this whole area was doused by the 1956 revision (see note 5, supra) of the definition of "electrical corporation." First, the changes made specific reference to a "cooperative association." Next, and more significant, the restrictive notion of furnishing electric power "for public service" was greatly expanded. This was done by adopting for electricity what had been promulgated for gas in 1959 (see historical note in note 6, supra) to subject to regulation one "furnishing electric power, * * * to its customers or members for domestic, commercial or industrial use * * *."

At least insofar as Garkane tried to define what "for public service" means, the 1965 statute seems clearly to overrule it. For Garkane expressly dealt with a company supplying electricity "to its customers or members."¹⁶

But we think the legislature meant it to be more than a legislative repeal of Garkane. It brought gas and electricity in harmony and as reflective of a purposeful broadening of regulatory coverage, the changes were carried forward into the definition of "public utility." (See note 6, supra).

On the uncontradicted facts revealed by this record we think also that Utah would not consider the power furnished solely for the "use of the tenants." At the outset, like Mordecai at the gate, there is Eldridge and his brood of sublessees. True, Cottonwood disclaims a purpose to serve him. But Eldridge gets all the benefit from the common lighting of the interior Mall,...