Dickinson v. Maine Public Service Co.

• Decision Date: 21 October 1966
• Citation: 223 A.2d 435
• Parties: Leslie R. DICKINSON et al. v. MAINE PUBLIC SERVICE CO. Harold E. SCOTT et al. v. WOODLAND WATER & ELECTRIC CO.
• Court: Maine Supreme Court

Page 435

223 A.2d 435

65 P.U.R.3d 366

Leslie R. DICKINSON et al. v. MAINE PUBLIC SERVICE CO.

Harold E. SCOTT et al. v. WOODLAND WATER & ELECTRIC CO.

Supreme Judicial Court of Maine.

Oct. 21, 1966.

Rehearing Denied Dec. 22, 1966.

Lynwood E. Hand, New Limerick, for appellants.

John G. Feehan, Augusta, for Public Utilities Commission.

Roger A. Putnam, Portland, Richard B. Sanborn, Augusta, Francis A. Brown, Calais, for appellees.

Before WEBBER, TAPLEY, MARDEN, RUDMAN and DUFRESNE, JJ.

WEBBER, Justice.

These cases involve several petitions brought by persons residing within the franchised service areas of defendant public utility companies and seeking orders by the Public Utilities Commission requiring these companies to provide them with electrical service. In each instance the petitioners were members and customers of Eastern Maine Electric Cooperative, Inc., a rural electric cooperative organized pursuant to 35 M.R.S.A. Sec. 2801 et seq. Eastern was permitted to intervene in opposition to the granting of these petitions.

In Heath, et al. v. Maine Public Service Co., (1965) 161 Me. 217, 210 A.2d 701, under similar circumstances we construed the statutes then in force and held that Eastern was not a public utility and had no franchised area. A short time after this decision was rendered and presumably as a result thereof, the legislature enacted certain amendments (P.L.1965, Ch. 348) which provided that cooperatives 'shall be deemed to be public utilities' and guaranteed all suppliers of electric service immunity from competition in their service areas. These amendments became effective September 3, 1965 while these petitions were pending but before decision thereon by the Commission. The Commission subsequently dismissed the petitions, basing its action on the change in the law wrought by these legislative amendments. The Commission as a quasi judicial tribunal very properly assumed the constitutionality of the new legislation.

The issues thus presented are:

1. Are these petitions governed by the law as it existed prior to the effective date of the statutory amendments?

2. Do the provisions of P.L.1965, Ch. 348 violate constitutional principles?

We are satisfied that petitions before the Commission pending but not decided on September 3, 1965 were thereafter governed by the statutes as then validly amended. 1 M.R.S.A. Sec. 302 provides in part: 'Actions pending at the time of the passage or repeal of an act are not affected thereby.' In Webster v. County Commissioners, (1874) 63 Me. 27, 30 our court limited the meaning of 'actions' as used in the statute to actions in courts of law and declined to safeguard a pending petition before county commissioners for the location of a way from the effect of a change in the statute. Like results were reached in Railway v. County Commissioners, (1895) 88 Me. 225, 33 A. 988 and Belfast v. Fogler, (1880) 71 Me. 403. In the instant case the rights of petitioners had not jelled. Even under Heath and the statutes in force prior to September 3, 1965 it was necessary for the Commission to determine the economic feasibility thereof before ordering a public utility to furnish requested service. We think the petitions which were pending before the Commission are not 'actions' but are more properly denominated 'proceedings' and are not immunized from a change in statutory law during their pendency by the provisions of 1 M.R.S.A. Sec. 302. The Commission committed no legal error in so holding.

We turn then to the constitutional issue. Before the 1965 amendments an electric cooperative was recognized as being something other than a public utility. It could furnish service only to its own members (35 M.R.S.A. Sec. 2881(4)). By express statutory definition it was not deemed to be a public utility (35 M.R.S.A. Sec. 2809). It enjoyed no territorial monopoly and except in very limited areas was entirely free from regulation and control by the Public Utilities Commission. (35 M.R.S.A. Sec. 2809; Heath, et al. v. Maine Public Service Co., supra). It did not possess the power of eminent domain. (35 M.R.S.A. Sec. 2881(7)). Heath made it clear that a resident in the area in which an electric cooperative was rendering service to its members could nevertheless obtain service by direction of the Commission from a fully regulated utility upon a showing of economic feasibility. The obvious intention of P.L.1965, Ch. 348 was to change this situation drastically and to confer upon electric cooperatives rights and privileges heretofore reserved exclusively to fully regulated public utilities.

The amendment made no change in 35 M.R.S.A. Sec. 2881(4). As a result the electric cooperative still has no obligation to serve the public generally but is required and permitted to serve only its own members. Since as will be seen the cooperatives were given territorial monopoly, it follows that the only way in which a member of the public can obtain electric service in the service area of a cooperative is by becoming a member of that cooperative. P.L.1965, Ch. 348, Sec. 1 provided for territorial monopoly by amending 35 M.R.S.A. Sec. 2301 and adding thereto a new paragraph reading as follows:

'No person, firm, association, corporation or cooperative engaged in the transmission, distribution and sale of electricity shall construct or extend facilities, or furnish or offer to furnish electricity, for ultimate use and not for resale, to any premises which are already receiving electric service from another electric supplier or which are not receiving such service but are located within 1,000 feet of a distribution line of another electric supplier, except with the consent in writing of such other electric supplier. Where unserved premises are located within 1,000 feet of the distribution lines of more than one supplier, said premises shall be severed by the supplier whose distribution line is located in closest proximity to such unserved premises.'

Sec. 2 of the amending chapter repealed 35 M.R.S.A. Sec. 2809 and enacted in place thereof the following:

'Sec. 2809. Limited jurisdiction of Public Utilities Commission

Cooperatives shall be denied to be public utilities and under the jurisdiction of the Public Utilities Commission for all purposes, except that their rates and their bonds, notes and other evidences of indebtedness need not be approved by said commission. In keeping and rendering accounts of the commission, they may use the system of acocunting required of them by federal law and regulation. Any person who has been refused membership in or service by a cooperative or who is receiving inadequate service may complain to the Public Utilities Commission which may, after hearing, upon finding that such service may reasonably be rendered, order such person to be served with reasonably adequate service.'

Sec. 3 struck from 35 M.R.S.A. Sec. 2881(7) the provision that cooperatives should not have the power of eminent domain.

We are called upon to determine whether or not the cumulative effect of the 1965 amendments deprives the petitioners or the respondents of equal protection of the laws in violation of the Fourteenth Amendment of the Constitution of the United States and of Art. I, Sec. 6-A of the Constitution of Maine. The whole body of public utility law has been developed here and elsewhere upon the concept of regulated monopoly. Implicit in this concept is an acceptance of the principle that a public utility offers its facilities and services to the public without discrimination and that it is obligated to extend its services as needed within its service area unless the supervisory agency determines that it is not practicable or economically feasible to do so. A public utility yields to the sovereign with respect to approval of rates, methods of financing and other matters of policy which are ordinarily within the sole province of management in private business. In return for relinquishing the right to determine without let or hindrance whom it will serve, what it will charge, or how it will finance or invest, it is usually given relative freedom from competition in its service area on the part of public utilities similarly regulated and controlled. The monopoly thus afforded as among competing public utilities is in effect a quid pro quo for the obligation to render public service and to submit to regulation and control. Monopoly granted and assured by the sovereign could not otherwise be justified within the framework of the constitution. This was the theory which undergirded our decision in Heath which held that a body which did not serve the public and did not submit to regulation and control was not a public utility and could not hold a monopolistic franchise.

Have the 1965 amendments effectively changed Eastern into a 'public utility' which is justly entitled to legislative immunity from competition in its service area? We think not. At the outset we are troubled by the fact that Eastern serves and can serve only its own members. As already noted, if Eastern can properly be granted monopoly, the result is that a member of the public in that area who needs and desires service but who is unwilling to become a member of Eastern cannot obtain service elsewhere. There are many valid reasons way a person might prefer not to become a member of an electric cooperative. A member must be a customer but he is more than a customer. Qualifications and limitations in respect to membership are fixed by the by-laws (35 M.R.S.A. Sec. 2844) and might in some respects be legitimately distasteful to an individual. An...