Utah Power & Light Co. v. Pfost

• Decision Date: 30 December 1931
• Docket Number: No. 1621.,1621.
• Citation: 54 F.2d 803
• Court: U.S. District Court — District of Idaho
• Parties: UTAH POWER & LIGHT CO. v. PFOST, Commissioner of Law Enforcement of Idaho, et al.

54 F.2d 803 (1931)

UTAH POWER & LIGHT CO. v. PFOST, Commissioner of Law Enforcement of Idaho, et al.

No. 1621.

District Court, D. Idaho, S. D.

December 30, 1931.

Hawley & Worthwine, of Boise, Idaho, and Merrill & Merrill, of Pocatello, Idaho (Geo. R. Corey, of Salt Lake City, Utah, and John F. MacLane, of New York City, of counsel), for plaintiff.

Fred J. Babcock, Atty. Gen., and Sidman I. Barber and Maurice H. Greene, Asst. Attys. Gen., for defendants.

Before SAWTELLE, Circuit Judge, and WEBSTER and CAVANAH, District Judges, as a statutory three-judge court.

CAVANAH, District Judge.

In the original opinion of the court rendered on August 20, 1931, on the motions to dismiss and for an interlocutory injunction 52 F.(2d) 226, we considered and disposed of all questions presented, excepting the remaining one of fact as to whether the tax imposed by the act (Laws Idaho 1931, Ex. Sess., c. 3) was in its application to the plaintiff, a burden on interstate commerce, as there appeared from the bill and the affidavits filed a real controversy over material questions of fact which could not have been satisfactorily determined by the bill and affidavits, so a master was appointed to take the testimony and report the same without findings or recommendations of decree. The case is now again before the court upon the testimony for a final determination of the issue thus stated.

The purpose of the legislative act in question is not in any manner to infringe on interstate commerce, but is to require the payment of a license tax upon all electricity and electrical energy generated in the state of Idaho for barter, sale, or exchange. It is limited to such electricity and electrical energy as is generated in the state, and applies to the practical operations of those systems from which it can be determined the amount of electricity and electrical energy so generated, as it requires the payment of one-half mill per kilowatt hour on all electricity and electrical energy so generated and produced in the state, measured at the place of production by the installation at the point of production by the producer of recording watt hour meters or other suitable instruments of a type to be approved by the commissioner of law enforcement, although such electricity and electrical energy may in part enter its journey in interstate commerce. Under the act the determination of the amount of electricity and electrical energy must be measured at the place of production, and is based on the number of kilowatt hours.

Our crucial question, therefore is: Does the act when applied to the practical operation of the plaintiff's electrical system infringe upon the commerce clause of the Constitution? The principle applicable to this inquiry is, as stated in our original opinion, that, where the production and delivery of the product is essentially local in character and not essentially national and the local interest is paramount, the question as to whether it actually burdens interstate commerce must be determined from the various circumstances in each case. The movement of the commodity for another state must have actually begun and is going on, and the character of the transportation depends upon the circumstances looking to what the owner had done in preparation for the journey and in carrying it out. Turning then to the evidence and testing it by this rule, a brief summary of it is indispensable to fully understand the nature of the plaintiff's operations. The manner of production and place of origin of the electricity and electrical energy generated by the plaintiff is testified to by some of the most noted engineers and physicists of the country, and, as usual among experts, there appears a difference of opinion relating to the practical and scientific view.

The weight of the evidence discloses that the plaintiff is engaged in the generation, transmission, delivery, and sale of electrical power and energy to its consumers, in the states of Idaho, Utah, and Wyoming, delivered at the point where the company's wires or apparatus are connected with those of the consumers, and the total energy generated by it at all of its Idaho stations for the year 1930 was 233,253,000 kilowatt hours, of which 199,968,000 kilowatt hours were generated at its Bear River Station in Idaho, and 33,285,000 kilowatt hours were generated at its other Idaho stations. Of the kilowatt hours so generated, 6,978,000 kilowatt hours were its station use at Idaho stations, and 24,046,000 kilowatt hours delivered to its Idaho consumers and its use at its division offices, and 198,502,000 kilowatt hours for transmission to Utah. The measured output of the Bear River Station in Idaho is 161,649,000 kilowatt hours. There are meters placed in the several stations showing the output in kilowatt hours, and the amount of electrical power or energy delivered to the consumers is measured by meters at the consumers' point of use. At the generating stations the amount of energy generated and the output to the transmission lines is measured as the plaintiff has determined that fact in kilowatt hours by meter measurements from the generator to the transmission line. The essential apparatus interspersed in the system to accomplish the transfer of the energy from the falling water to the place of use are generators, transformers, and transmission lines. The generator is a device for converting mechanical energy into electrical energy and by which the energy drawn from the water is changed from one form to another and passed along. The transmission losses are dependent upon the transmission system, not upon the generating system and can be determined by the installation of meters on the line of the system at various parts of it under given conditions. Energy for commercial purposes may be measured by meters placed outside of the generators, which is the first place at which energy transferred through the generator may be measured. These meters measure the energy flowing past the point at which the meter is connected, and the amount of the energy which reaches the transformer can be accurately measured at any point on the line and which is done as a commercial operation. The dispatcher at the stations, by opening or closing of the different switches, can direct the output of a certain station available to consumers over that transmission net work. While there appear differences of opinion among the engineers and scientists as to whether the generation of electrical energy can be determined at the place of production and before it reaches the point of use, yet we are impressed with the view expressed by those who have testified that it can be measured and the amount accurately determined by the installation of meters or other proper instruments at the place of production, and especially is that true when we consider the testimony of Mr. Hale, the chief engineer of the plaintiff, to the effect that in the operation of the system the plaintiff determines with accuracy its meter number of kilowatt hours of energy generated by it in Idaho at its various generating stations and before it starts in transmission on its journey to Utah and Wyoming. This actual fact that the plaintiff is by its meters determining the...