Grafton County Electric Light & Power Co. v. State

• Decision Date: 06 April 1915
• Citation: 93 A. 1028,77 N.H. 490
• Parties: GRAFTON COUNTY ELECTRIC LIGHT & POWER CO. et al. v. STATE.
• Court: New Hampshire Supreme Court

93 A. 1028

77 N.H. 490

GRAFTON COUNTY ELECTRIC LIGHT & POWER CO. et al.

v. STATE.

Supreme Court of New Hampshire.

April 6, 1915.

Appeal from Public Service Commission.

Petitions by the Grafton County Electric Light & Power Company and others to the Public Service Commission. From its orders and decisions, petitioners appeal. Recommitted.

Appeal, from orders and decisions of the Public Service Commission, filed April 22, 1914. The appellants are the Grafton County Electric Light & Power Company, the Lebanon Electric Light & Power Company, and the Mascoma Electric Light & Gas Company, all New Hampshire corporations. The Grafton County Company was organized under general law in September, 1912, for the purpose of taking over the physical properties of the other corporations.

There were two petitions filed with the Public Service Commission on September 27, 1912. By the first petition, the Grafton County Company asked for authority to issue $300,000 in stock and bonds for the acquisition of the physical properties of the Lebanon and Mascoma Companies, and $60,000 in stock and bonds for new expenditures on those properties made after November 1, 1912, and also for permission to engage in business in Lebanon and Hanover and to transmit electric energy outside the state. By the second petition, the Grafton County Company asked permission to acquire the physical properties of the Lebanon and Mascoma Companies and to issue stock and bonds in the aggregate amount of $300,000 in payment therefor, and the Lebanon and Mascoma Companies asked for authority to sell to the Grafton County Company on the foregoing terms.

At the hearing before the Commission, the book values of the material assets of the Mascoma and Lebanon Companies were shown to be $145,036.82. The Grafton County Company contended, and there was evidence to show, that said assets were worth more than $300,000. The Commission found that, on account of the excessive price at which it was proposed to transfer and capitalize the properties, such transfers would not be for the public good, and dismissed the petitions. The Commission made no finding as to whether the proposed transfers would be of public advantage without reference to capitalization asked for, and did not report the maximum capitalization of the properties which would be approved.

Benjamin W. Couch and Streeter, Demond, Woodworth & Sulloway, all of Concord, and Thomas W. Streeter, of Boston, Mass., for plaintiffs. James P. Tuttle, Atty. Gen., and Louis E. Wyman, of Manchester, for the State.

PARSONS, C. J. At the suggestion of the court the argument has been confined to the preliminary questions: (1) Whether the record is sufficiently complete for adjudication here; (2) whether additional evidence shall be received; and (3) as to the scope of the appeal.

1. There were two petitions before the Commission: (1) The plaintiffs asked for authority to issue stock and bonds and to engage in business in Lebanon and Hanover; and (2) the plaintiffs and the Lebanon Electric Light & Power Company and the Mascoma Electric Light & Gas Company asked permission for a transfer of all the property and franchises of the two latter to the first petitioner. "On account of the excessive price at which it is proposed to transfer and capitalize these properties," the Commission found "such transfer would not be for the public good," and dismissed both petitions. All the capital of the Lebanon and Mascoma companies, both stock and bonds, is owned by the persons wishing to operate as the Grafton County Company. The second petition is practically a request for permission to consolidate the two companies into one. Such transfer as is proposed may be made, if the Commission assent thereto, and the Commission are required to make an order of assent, if such transfer would be for the public good. Supp, P. S. 349; Laws 1911, c. 164, § 13b.

Such a combination as is here proposed may or may not of itself be of public advantage, without reference to any question of price or capitalization. If it is found that such combination would be for the public advantage, the question at what sum the present owners should be permitted to capitalize the property in the new corporation will arise. Until that fact is found affirmatively, discussion of the question of capitalization is purely academic; and for this court to undertake the examination of the conclusion of the Commission thereon would be, not merely academic, but utterly useless. Ordinarily, where a petition is denied upon a single ground, it would perhaps be assumed that no other objection to granting it existed, and some expressions in the report tend to establish such conclusion in this case; but nevertheless the Commission expressly hold open the question "whether the transfer is otherwise unobjectionable." The price at which the original holders sold the property, or which the present owners paid for it, while important as evidence upon the question of capitalization, can have no bearing upon the question whether these two properties should be operated as one. Over the price either thought wise to make a measure of the transfer of the property, neither the Commission nor the Legislature have any control.

"No * * * public utility shall issue any stock, bonds, notes, or other evidence of indebtedness payable more than twelve months after the date thereof, without first procuring an order of the Commission authorizing the same. Upon petition of the directors of a railroad corporation or public utility, the Commission shall, after public notice and hearing, determine the amount of stock or bonds which in its opinion is reasonably requisite for the purposes for which the issue is to be made." Supp. P. S. 350; Laws 1911, c. 164, § 14a. Much evidence is contained in the record, and some evidentiary facts are found; but the fact which the statute makes it the duty of the Commission to find is not found.

The plaintiffs' original pleading may have been faulty. Their petition should perhaps have asked the Commission to "determine the amount of stock or bonds which in its opinion is reasonably requisite for the purposes for which the issue is to be made." Laws 1911, c. 164, § 14a. But whether the prayer of the petition asking the authorization of an exact amount of stock and bonds should or should not, in view of the definite terms of the statute and modern liberality in pleading, have been considered sufficient to constitute a request for a determination of the amount reasonably requisite for the purposes of the proposed issue, the error, if one, was corrected by the definite request in the motion for rehearing:

"That the Commission find the price at which it will approve the transfer of the Mascoma and Lebanon properties, respectively, and the amount of stock and bonds which it will authorize the Grafton County Electric Light & Power Company to issue in payment of the same."

Language could not be more definite or express in the submission to the Commission of the precise question the statute required them to determine.

One purpose of requiring a motion for a rehearing, setting forth every ground of complaint, must have been to enable the Commission to correct any error into which they may have fallen, and thereby render an appeal unnecessary. The statement that the petitioners might bring another petition asking a transfer at a less purchase price would involve useless and unnecessary procedure. That a party should be driven out of court for mere defect in form, and compelled to begin anew, is a proceeding so foreign to New Hampshire practice for the last 30 years that it cannot be presumed the Legislature intended to require such technicality.

After the denial of their motion for rehearing, the plaintiffs filed a request for an amendment of the report making the original order, or of that denying the motion for rehearing definitely fixing the amount of capitalization which the Commission would approve of the Lebanon and Mascoma properties. The point which the statute required the Commission to find was thus definitely presented a second time, and the failure to pass thereon was error of law. For the reasons suggested, the appeal might now be sustained, and the orders of dismissal vacated; but such order at this time would not mean progress in the litigation, and might occasion unnecessary expense in a second presentation of the record. Instead of vacating the order at this time, it seems more convenient procedure to allow the same to stand until the facts that have not been found can be found and certified. The matter is recommitted to the Commission to find and certify whether the proposed consolidation at a proper capitalization will be for the public good, and, if it is, to determine the amount of stock or bonds which in their opinion is reasonably requisite for the purpose proposed.

It is conceded that questions of law involved in the action of the Commission are revisable by this court. It is therefore the duty of the Commission to find all facts which either party may request, essential to the presentation of all questions of law raised by any decision or order made by them. Broderick v. Hunt, 77 N. H. 139, 89 Atl. 302.

2. The plaintiffs offer and ask to have considered certain evidence which was not submitted before the Commission. The evidence appears material and important, and there is some evidence tending to show accident and mistake as a reason for not presenting it before the Commission. Should the order dismissing the petition be sustained, the petitioners would be at liberty to commence a new petition, upon the trial of which the evidence could be presented. Convenience in administration seems to require its consideration now in connection with the evidence already taken. The evidence has been presented in the form of affidavits. The clerk will transmit to the Commission certified copies of the affidavits, and also of this opinion and order, for...