Edington v. New Mexico Public Service Commission

• Decision Date: 07 December 1964
• Docket Number: No. 7483,7483
• Citation: 397 P.2d 300,1964 NMSC 248,74 N.M. 647
• Parties: , 57 P.U.R.3d 106 Ray EDINGTON, Petitioner-Appellant, v. The NEW MEXICO PUBLIC SERVICE COMMISSION, L. J. Chambard, Chairman, R. R. Spurrier, Commissioner, and A. M. Ulibarri, Commissioner, Columbus Electric Cooperative, Inc., and Mr. and Mrs. Bill Miller, Mr. and Mrs. Don Bobison, Mr. and Mrs. Jim Strickland, Mr. and Mrs. Bill Kambitch, Mrs. I. B. Richards, Mrs. Jack Hoggett, Mr. and Mrs. Bill Miller, Jr., Mr. and Mrs. Clarence Russell, Respondents-Appellees.
• Court: New Mexico Supreme Court

Page 300

397 P.2d 300

74 N.M. 647, 57 P.U.R.3d 106

Ray EDINGTON, Petitioner-Appellant, v. The NEW MEXICO PUBLIC SERVICE COMMISSION, L. J. Chambard Chairman, R. R. Spurrier, Commissioner, and A. M. Ulibarri Commissioner, Columbus Electric Cooperative, Inc., and Mr and Mrs. Bill Miller, Mr. and Mrs. Don Bobison, Mr. and Mrs Jim Strickland, Mr. and Mrs. Bill Kambitch, Mrs. I. B. Richards, Mrs. Jack Hoggett, Mr. and Mrs. Bill Miller, Jr., Mr. and Mrs. Clarence Russell, Respondents-Appellees.

No. 7483.

Supreme Court of New Mexico.

Dec. 7, 1964.

Woodbury, Schaber & Nunn, Lordsburg, for appellant.

Earl E. Hartley, Atty. Gen., Frederick G. Von Huben, Sp. Asst. Atty. Gen., Santa Fe, for appellee New Mexico Public Service Commission.

Ray Hughes, Deming, for appellee Columbus Electric Cooperative, Inc.

CARMODY, Justice.

The district court affirmed an order of the New Mexico Public Service Commission, which concerned the supplying of electrical service in the area of Rodeo, New Mexico. This appeal challenges the authority of the Commission to declare Columbus Electric Cooperative, Inc. a public utility and grant it a certificate of public convenience and necessity.

For simplicity, appellant will be referred to as 'Edington,' The New Mexico Public Service Commission as 'the Commission,' and Columbus Electric Cooperative, Inc. as 'Columbus,' both of the latter being appellees.

Edington owns and operates a small public utility in the Rodeo area under authority of a certificate of public convenience and necessity. Certain residents of the community filed a complaint against him with the Commission, alleging, among other things, that he service was inadequate. Following a hearing, the Commission entered an order determining that it lacked authority to revoke Edingtonhs certificate but finding that the service was inadequate and releasing the complainants from any obligation to use Edington's electrical service. A short time later, Columbus filed an application with the Commission for a certificate of public convenience and necessity for the Rodeo area. After a hearing, the certificate was granted, the Commission determining that it had jurisdiction over Columbus even though it was a cooperative.

Edington sought review in the district court of both of the orders of the Commission, and the district court affirmed the orders. Edington appealed the judgment of the district court, but before us attacks only the jurisdiction of the Commission and no issue is made as to the reasonableness of the Commission's orders.

Edington's approach to the problem is dual-pronged--he first urges that the Commission had no jurisdiction over Columbus because Columbus is not a public utility; alternatively, he claims that the statutes authorizing the Commission to exercise jurisdiction over Columbus are invalid and violative of both the New Mexico and the United States Constitutions. Both of the issues require a consideration of certain sections of the Public Utility Act.

The Public Utility Act was initially enacted by the legislature in 1941 and now appears, with certain amendments, as Sec. 68-3-1 through Sec. 68-11-8, N.M.S.A.1953. Prior to 1961, the Act specifically excluded rural electric cooperatives from the jurisdiction of the Commission by the provisions of Sec. 68-3-3, N.M.S.A.1953. In Socorro Electric Co-op., Inc. v. Public Service Co., 1959, 66 N.M. 343, 348 P.2d 88, we sustained the Commission in its determination that it lacked jurisdiction over the Socorro Electric Cooperative because it 'fails to meet the test of a public utility.' Thereafter, by ch. 89 of the laws of 1961, the legislature amended the Public Utility Act, and, in this connection, Sec. 68-3-3, supra, was amended by deleting the exclusion of rural electric cooperatives. In addition, Sec. 68-3-2(F)(1), N.M.S.A.1953, was amended to specifically include rural electric cooperatives within the definition of 'public utility' or 'utility.' The 1961 act also contained other provisions relating to cooperatives, in that Sec. 68-6-8, N.M.S.A.1953, provided for payment of inspection and supervision fees by utilities 'including corporations organized under sections 45-4-1 through 45-4-32 New Mexico Statutes Annotated, 1953 Compilation' (Rural Electric Cooperative Act); Sec. 68-7-1.1(A), N.M.S.A.1953, required cooperatives to apply to the Commission for certificates of convenience and necessity for existing plants, lines and systems; Sec. 68-7-1.1(B), N.M.S.A.1953, recognized that if overlaps or conflicts with another certificate occurred, both utilities could continue service; Sec. 68-6-3.1, N.M.S.A.1953, authorized the Commission to adopt regulations relating to cooperatives' filing rate schedules and other necessary information; and, finally, the act included an entirely new section, which is as follows (Sec. 68-5-4.1, N.M.S.A.1953):

'The public service commission shall have no jurisdiction over rates charged by utilities organized under sections 45-4-1 through 45-4-32 New Mexico Statutes Annotated, 1953 Compilation, known as the Rural Electric Co-operative Act, except in any territory in which an overlapping or conflicting certificate of convenience and necessity has been issued to and exercised by any other public utility for the same class of service; Provided that, except as provided in section 8A of this 1961 act [68-7-1.1], nothing in this section shall be construed to prohibit the public service commission from inquiring into the reasonableness of the rates of any public utility in connection with any application for the granting or extension of any certificate of convenience and necessity or in connection with any complaint of a public utility of present or threatened unreasonable interference with its service or system.'

The claim by Edington that the Commission had no jurisdiction because Columbus is not a public utility has no merit. Edington is hardly in a position to complain, nor, even if he were correct, would a reversal aid him in any way. Prior to amendment, Columbus was entirely free to compete with Edington, without any restraint or control over it by the Commission. See Socorro Electric Co-op., Inc. v. Public Service Co., supra. Following the amendment (assuming for this purpose its validity), Columbus lost its independent status and, particularly having applied for a...