Clearwater Power Co. v. Washington Water Power Co.

• Decision Date: 28 June 1956
• Docket Number: No. 8384,8384
• Citation: 299 P.2d 484,78 Idaho 150
• Court: Idaho Supreme Court
• Parties: , 15 P.U.R.3d 31 CLEARWATER POWER COMPANY, Idaho County Light & Power Cooperative Association, Inc., Northern Lights, Inc., and Kootenai Rural Electrification Association, Inc., Petitioners-Appellants, v. WASHINGTON WATER POWER COMPANY, Defendant-Respondent, and Idaho Public Utilities Commission, Respondent.

Page 484

299 P.2d 484

78 Idaho 150, 15 P.U.R.3d 31

CLEARWATER POWER COMPANY, Idaho County Light & Power Cooperative Association, Inc., Northern Lights, Inc., and Kootenai Rural Electrification Association, Inc., Petitioners-Appellants, v. WASHINGTON WATER POWER COMPANY, Defendant-Respondent, and Idaho Public Utilities Commission, Respondent.

No. 8384.

Supreme Court of Idaho.

June 28, 1956.

William J. Dee, Grangeville, Whitla & Knudsen, Coeur d'Alene, Edward C. Butler, Lewiston, Glenn E. Bandelin, Sandpoint, for appellants.

Carey H. Nixon, Boise, Alan G. Paine, Spokane, Wash., for respondent.

Graydon W. Smith, Atty. Gen., and Kenneth G. Bergquist, Asst. Atty. Gen., for Idaho Public Utilities Commission.

TAYLOR, Chief Justice.

The appellants are rural electrical, nonprofit, cooperative corporations, organized pursuant to the Rural Electrification Acts of Congress.

August 4, 1955, these cooperatives filed a petition or complaint with the public utilities commission charging that the respondent Washington Water Power Company for the past several years has been extending its lines into territories and areas served by them; taking members from them and serving them with electricity; and serving individuals whom petitioners stand ready, willing and able to serve. The petitioners asked the commission to order the respondent to cease and desist from encroaching into territories served by them; to discontinue service to petitioners' former members and other consumers in those areas; to restore such former members and consumers to appellants; to remove its poles and transmission lines from territory served by appellants. The commission by its order No. 3444 dismissed the complaint for want of jurisdiction. A petition for rehearing was filed and denied on the same ground by the commission's order No. 3491. This appeal is from both orders.

It is established in this state that appellants are not public utilities and are not subject to the jurisdiction of the public utilities commission. § 61-104, I.C.; Sutton v. Hunziker, 75 Idaho 395, 272 P.2d 1012.

In their complaint the appellants allege that each of them is a non-profit, cooperative corporation 'and supplies electrical power to its members.'

The power and duty of the commission in cases involving encroachment or interference by one utility in the territory of, or contiguous to, another is defined by statute as follows:

'No street railroad corporation, gas corporation, electrical corporation, telephone corporation or water corporation, shall henceforth begin the construction of a street failroad, or of a line, plant, or system or of any extension of such street railroad, or line, plant, or system, without having first obtained from the commission a certificate that the present or future public convenience and necessity require or will require such construction: provided, that this section shall not be construed to require such corporation to secure such certificate for an extension within any city or county, or city or town, within which it shall have theretofore lawfully commenced operation, or for an extension into territory whether within or without a city or county, or city or town, contiguous to its street railroad, or line, plant or system, and not theretofore served by a public utility of like character, or for an extension within or to territory already served by it necessary in the ordinary course of its business: and provided further, that if any public utility in construction or extending its lines, plant or system, shall interfere or be about to interfere with the operation of the line, plant or system of any other public utility already constructed, the commission on complaint of the public utility claiming to be injuriously affected may, after hearing, make such order and prescribe such terms and conditions for the locating of the line, plant or system affected as to it may seem just and reasonable: * * *.' § 61-526, I.C.

The power thus given to the commission to prevent interference by extensions of a public utility into territory already served, is limited to territory already served by 'another public utility', and the complaint which the commission is authorized to hear is the 'complaint of the public utility claiming to be injuriously affected.' § 61-526, I.C. The commission is given no authority by that section to hear the complaint of cooperatives.

Appellants cite § 61-612, I.C., which in substance provides that any corporation or person may make complaint to the commission of any act of a public utility which the complainant claims to be a violation of law or of some order or rule of the commission. The complaint does not appear to charge any violation of an order or rule of...