Attleboro Steam & Electric Co. v. Pub. Utilities Comm'n

• Decision Date: 18 June 1925
• Docket Number: Nos. 435, 436.,s. 435, 436.
• Citation: 129 A. 495
• Parties: ATTLEBORO STEAM & ELECTRIC CO. v. PUBLIC UTILITIES COMMISSION et al. (two cases).
• Court: Rhode Island Supreme Court

129 A. 495

ATTLEBORO STEAM & ELECTRIC CO.

v. PUBLIC UTILITIES COMMISSION et al. (two cases).

Nos. 435, 436.

Supreme Court of Rhode Island.

June 18, 1925.

Appeal from Public Utilities Commission.

Proceeding by the Narragansett Electric Lighting Company before the Public Utilities Commission to fix rates for electricity sold the Attleboro Steam & Electric Company. From an order of the Public Utilities Commission, fixing the rates, the Attleboro Steam & Electric Company appeals, and brings certiorari. Certiorari dismissed, and appeal sustained. Order of Public Utilities Commission reversed.

Curtis, Matteson, Boss & Letts and Archibald C. Matteson, all of Providence, Storey, Thorndike, Palmer & Dodge, R. G. Dodge, and H. S. Davis, all of Boston, Mass., for Attleboro Steam & Electric Co.

Hinckley, Allen, Tillinghast & Phillips, Arthur M. Allen, and Roger T. Clapp, all of Providence, Ropes, Gray, Boyden & Perkins, and Roland W. Boyden, and Frank D. Comerford, all of Boston, Mass., for Narragansett Electric Lighting Co.

Charles P. Sisson, Atty. Gen., for Commission.

STEARNS, J. These are two proceedings, one by certiorari, the other by appeal from an order of the Public Utilities Commission, brought by the Attleboro Steam & Electric Company (hereinafter Attleboro Company). Appellant, being in doubt as to the correct procedure, brought the two proceedings; the same question is raised in each.

The Attleboro Company seeks to have order No. 876 made by the Public Utilities Commission (hereinafter the Commission) reversed and declared invalid.

The facts, so far as essential to the present inquiry, are as follows: The Attleboro Company supplies electricity for public and private use in Attleboro, Mass. The respondent, Narragansett Electric Lighting Company (hereinafter Narragansett Company), a Rhode Island corporation, is engaged in a general electric lightiug, heating, and power business.

May 8, 1917, a contract was made by Narragansett Company, party of the first part, with two Massachusetts corporations, Attleboro Company, party of the second part, and Seekonk Electric Company (hereinafter Seekonk Company), party of third part. The Narragansett Company agreed to sell to the Attleboro Company for a period of 20 years all the electrical energy used by the Attleboro Company and supplied to its customers in the city of Attleboro; such electrical energy was to be delivered at the state line between Seekonk, Mass., and East Providence, R. I., and to be metered on the transformers of the Attleboro Company at its generating plant in Attleboro; the Seekonk Company agreed to secure the necessary rights of way through Seekonk and build therein a transmission line from the point of delivery at the state line to the boundary line between Seekonk and Attleboro, and there connect with the transmission line to be built by the Attleboro Company to connect with its station in Attleboro. The Narragansett Company agreed to build the transmission line for the Seekonk Company, the latter to pay therefor, however, only the actual cost of material and labor and such other costs as would be considered assets to capitalize by the Massachusetts board of gas and electric light commissioners, the cost to the Seekonk Company in no event to exceed $4,500 a mile. A similar provision for construction was made with the Attleboro Company for its transmission line. The Narragansett Company agreed to pay annually to each of the companies 15 per cent. of the amounts paid by each to the Narragansett Company for such construction, and in addition to pay the Seekonk Company annually 15 per cent. of any additional expenditures for additions or changes in its lines. The Attleboro Company agreed to furnish the necessary transformers, etc., at its station to receive the electric current, and the Narragansett Company agreed to pay the Attleboro Company $1,750 annually for the operation by the Attleboro Company of the receiving station. The Narragansett Company agreed to install and maintain as its property and at its expense meters on the transformers at the station of the Attleboro Company to measure and determine the amount of current received and to be paid for by said company.

The contract price, 8.57 mills per kilowatt hour, as registered by such meters, was to be subject to increase or decrease at the rate of .085 mills per kilowatt hour for every 10-cent variation from the base price of $3.50 per long ton of coal delivered alongside the generating station of the Narragansett Company on the Providence river. The contract provides for a decrease of price if the electrical energy is produced by cheaper fuel or the cost is less by reason of the use of any subsequent invention or improvement. Any change of federal, state, or municipal laws or regulations, changing any existing taxes or imposts which materially increases or decreases the cost to the Narragansett Company, of generating, or delivering electrical energy, was to be equitably adjusted in the price by the parties.

The Attleboro Company agreed to retain and maintain its present generating station and machinery except its present engine driven units, and that the Narragansett Company at any time at its own expense might use the same for generating and supplying electrical energy to the Attleboro Company.

The Narragansett Company guaranteed to the Attleboro Company that the Seekonk Company would promptly and properly perform its contract obligations and to indemnify the Attleboro. Company for any loss suffered by it because of any breach of the contract by the Seekonk Company.

May 14, 1917, the Narragansett Company filed with the Commission schedule No. 68, setting out the rate and general terms of the contract, and an application that said rate be approved as a special rate under section 42, Public Utilities Act (c. 795, P. L. 1912). May 23, 1917, the Commission made an order authorizing the Narragansett Company to grant a special resale rate to the Attleboro Company at the state line in accordance with schedule No. 68. The parties proceeded to carry out the contract, and the Narragansett Company is still supplying electrical energy to the Attleboro Company. May 7, 1924, the Narragansett Company filed with the Commission schedule No. 125, setting out a rate for service to the Attleboro Company materially higher than the rate specified in the contract and schedule No. 68. At the solicitation of the Narragansett Company, the Commission, on its own motion, ordered an investigation and public hearing upon the propriety of the proposed change of rate, and directed that notice thereof be given by mail to the two companies. The Attleboro Company appeared at the hearing and made objection to the jurisdiction of the Commission. This objection was overruled, and a hearing was had on the merits of the proposed change. January 21, 1925, the Commission made an order, No. 876, to the effect that the contract rates were insufficient, unjustly discriminatory, and in violation of the Public Utilities Act; that the increased rates in schedule No. 125 were just and reasonable, and ordered that they should become effective February 1, 1925. The Attleboro Company challenges this order, and claims it is unlawful and void on various grounds; the principal and decisive objection, in our judgment, is that said order is an improper interference by the state with interstate commerce.

The Attleboro Company is properly here by appeal. Section 34, c. 795, provides that any public utility or any complainant aggrieved by any order of the Commission fixing any rate, etc., may appeal to the Supreme Court for a reversal of such order. The Attleboro Company is not a "public utility" as that term is used in the act (section 2), nor is it strictly a "complainant" in a technical sense, as the original proceeding was begun by the Commission on its own motion (section 26). The Commission by section 28 is required to give notice to such interested parties as the Commission shall deem necessary, as provided in section 20. This latter section requires the Commission to give to "the public...