Humbird Lumber Co. v. Public Utilities Commission

• Decision Date: 31 July 1924
• Citation: 39 Idaho 505,228 P. 271
• Court: Idaho Supreme Court
• Parties: HUMBIRD LUMBER COMPANY, a Corporation, Appellant, v. PUBLIC UTILITIES COMMISSION and SANDPOINT WATER & LIGHT COMPANY, a Corporation, Respondents

228 P. 271

39 Idaho 505

HUMBIRD LUMBER COMPANY, a Corporation, Appellant, v. PUBLIC UTILITIES COMMISSION and SANDPOINT WATER & LIGHT COMPANY, a Corporation, Respondents

Supreme Court of Idaho

July 31, 1924

PUBLIC UTILITY-WHAT CONSTITUTES-DEDICATION TO PUBLIC SERVICE-PUBLIC UTILITIES COMMISSION-JURISDICTION OF.

1. If a concern is not a public utility, it is not subject to the jurisdiction of and regulation of the Public Utilities Commission.

2. For a water company to be a public utility and within the jurisdiction of the Public Utilities Commission, it must be operating and delivering water to the public for compensation.

3. The delivery of water to one person or corporation, under contract for compensation, does not constitute a sale of water to the public or some portion thereof within the provisions of C. S., sec. 2396, so as to constitute the vendor a public utility.

4. Whether a concern has held itself out as ready, able and willing to serve the public is the test for determining if it is a public utility.

5. A lumber manufacturing company, by pumping water from a lake to the water system of a railway company for compensation, does not thereby become a public utility when the lumber company's water system was constructed for the primary purpose of furnishing water for its manufacturing needs and fire protection and it has never furnished or offered to furnish water to any other person or corporation.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. John M. Flynn, Judge.

Judgment quashing writ of review and affirming order of the Public Utilities Commission. Reversed.

Reversed.

E. W Wheelan and James E. Babb, for Appellant.

A lumber company operating as a necessary part of its manufacturing operations a water system, necessary for use and used in such operations, does not become a water corporation, or the operator of a water system or a public utility under the provisions of chapter 61, Laws of 1913 simply because it furnishes from its waterworks water to Northern Pacific Railway Company, a near neighbor of its manufacturing plants, it not having solicited any other customers and serving no other customers with water, and having no intention so to do. (Thayer v. California Development Co., 164 Cal. 117, 128 P. 21; De Pauw University v. Public Service Com., 247 F. 183; Nampa & Meridian Irr. Dist. v. Briggs, 27 Idaho 84, 147 P. 75; Bartee Tie Co. v. Jackson, 281 Ill. 452, 117 N.E 1007; People v. Ricketts, 248 Ill. 428, 94 N.E. 71; State Public Utility Com. v. Bethany Mutual Telephone Assn., 270 Ill. 183, Ann. Cas. 1917B, 485, 110 N.E. 334; Leavitt v. Lassen I. Co., 157 Cal. 82, 106 P. 404; Burr v. Maclay Rancho Water Co., 160 Cal. 268, 116 P. 715; Marin Water & Power Co. v. Town of Sausalito, 168 Cal. 587, 143 P. 767; Palermo Land & Water Co. v. Railroad Com., 173 Cal. 380, 160 P. 228; Cauker v. Meyer, 147 Wis. 320, 133 N.W. 157, 37 L. R. A., N. S., 510; Wisconsin Traction, Light, Heat & Power Co. v. City of Menasha, 15 Wis. 1, 145 N.W. 231; 1 Wyman on Public Service Corp., secs. 200, 231-242; 3 Kinney on Irrigation and Water Rights, p. 2659; Noble Telephone Co. v. Noble Mutual Tel. Co., 268 Ill. 411, Ann. Cas. 1916D, 897; 109 N.E. 298; Evansville etc. Co. v. Okaw etc. Co., P. U. R. 1917D, 730; Purdy's Beach on Private Corporations, sec. 1032; Fallsburg Power Co., etc., v. Alexander, 101 Va. 98, 99 Am. St. 855, 43 S.E. 194, 61 L. R. A. 129; Avery v. Vermont Electric Co., 75 Vt. 235, 98 Am. St. 818, 54 A. 179, 59 L. R. A. 817; State ex rel. Danciger & Co. v. Public Service Commission of Missouri, 275 Mo. 483, 18 A. L. R. 754, 205 S.W. 36; Stoehr v. Natatorium Co., 34 Idaho 217, 200 P. 132; Fellows v. Los Angeles, 151 Cal. 52, 90 P. 137.)

Paragraph (bb) of section 2, chapter 61, Laws of 1913, defines public utility as those who serve "the public or some portion thereof," which expression was previously used and illustrated and defined in Hildreth v. Montecito Creek Water Co., 139 Cal. 22, 72 P. 395, following McQuillin v. Hatton, 42 Ohio St. 202; Lewis on Eminent Domain, p. 161; Coster v. Tidewater Co., 18 N.J. Eq. 68; Pocantico v. Bird, 130 N.Y. 249, 29 N.E. 246; Gilmer v. Line Point, 18 Cal. 229.

"Some" means not one, but a small or inconsiderable number as defined in instruction approved. (St. Louis Paper Box Co. v. Hubinger Bros. Co., 100 F. 595, 40 C. C. A. 577; Hum v. Olmstead, 105 N.Y.S. 1091; Washington Water Power Co. v. Montana Power Co., Case No. F-68, P. U. R. 1916E, 144; Mountain States Tel. & Tel. Co. v. Project Mutual Tel. & Electric Co., P. U. R. 1916F, 370; Fulton, Light, Heat & Power Co. v. Granby etc. Co., P. U. R. 1917A, 76; McFadden v. County of Los Angeles, 74 Cal. 571, 16 P. 397; Barton v. Riverside Water Co., 155 Cal. 509, 101 P. 790, 23 L. R. A., N. S., 331.)

A corporation engaged in a private business and with authority only to carry on such business, having equipment or supplies used in carrying on the same, may accumulate a sufficient surplus to enable them to supply water to one or more other industries in need thereof, as an incident of its private business, and as a means of reimbursing itself for the expenses of securing the supply or equipment needed in its own business, and in so doing does not violate a franchise granting another the monopoly of dealing therein as a public utility, or otherwise. (State ex rel. Public Service Com. v. Spokane & I. E. R. Co., 89 Wash. 599, 154 P. 1110; United States v. Chandler-Dunbar Water Power Co., 229 U.S. 51, 33 S.Ct. 667, 57 L.Ed. 1063; Johnson City v. Weeks, 133 Tenn. 277, 3 A. L. R. 1431, 180 S.W. 327; Chattanooga etc. Power Co. v. United States, 209 F. 28, 126 C. C. A. 170; Mayo v. Dover & Foxcraft Village Fire Co., 96 Me. 539, 53 A. 62; Edwards v. City of Cheyenne, 19 N.Y. 285, 114 P. 677, 122 P. 900; Roberts v. City of Cambridge, 164 Mass. 176, 41 N.E. 230; Pikes Peak Power Co. v. City of Colorado Springs, 105 F. 1, 44 C. C. A. 333; Crouch v. City of McKinney, 47 Tex. Civ. 54, 104 S.W. 518.)

In judging the extent of a reasonable equipment and supply with which plaintiff was authorized to equip itself for the purpose of its private business, it was not limited to absolute necessity, and could acquire, in excess of present needs, in anticipation of increased demands in the future, and is allowed a large discretion, which will not be interfered with except in case of abuse. (Lewis on Eminent Domain, sec. 453; Marsh Mining Co. v. Inland M. & M. Co., 30 Idaho 1, 165 P. 1128.)

The fact that the single individual or enterprise supplied with water by the private enterprise may be a large user of water or otherwise is not determinative in ascertaining whether the supply of the same constitutes public service. (Bartee Tie Co. v. Jackson, 281 Ill. 452, 117 N.E. 1107, citing People v. Ricketts, 248 Ill. 428, 94 N.E. 71.)

Herman H. Taylor, Roy L. Black, Attorney General, and A. H. Conner, succeeding Attorney General, for Respondents, file no brief.

WM. E. LEE, J. McCarthy, C. J., and Budge and William A. Lee, JJ., and Johnson, District Judge, concur.

OPINION

WM. E. LEE, J.

--The material facts in this case are that the Humbird Lumber Company is the owner of extensive lumber plants at Sandpoint and Kootenai; years ago it constructed and installed at each of these plants complete water systems for use in its operations and for fire protection. Water-tanks have been erected at each plant from which water is forced through the systems. At each place it has installed a steam pump of one thousand gallons capacity per minute and an electric pump of five hundred and fifty gallons capacity per minute. These plants have been erected upon the lands of the lumber company outside of the corporate limits of Sandpoint and Kootenai, and are adjacent to Lake Pend D'Oreille, from which the water is pumped. At both Sandpoint and Kootenai, and adjoining the respective plants of the lumber company the Northern Pacific Railway Company, on its own lands, has depots, roundhouses, cattle-pens, offices, section-houses, etc.; and it has a complete water system at each place through which water is furnished from standpipes or tanks for the trains and engines of the railway company and for its various other uses. The Sandpoint Water & Light Company's system formerly connected with the water systems of the lumber and railway companies, but prior to the commencement of this proceeding, the lumber and railway companies discontinued the water company's service. The lumber company connected its water systems with the water systems of the railway company, and has since supplied the railway company with water.

The water company is a public utility, and sought by the proceeding instituted before the Public Utilities Commission to secure an order of the commission directing the lumber company to refrain from furnishing water to the railway company. The commission found that the lumber company was functioning as a public utility; that it had not secured a certificate of public convenience and necessity; and made and issued order No. 475, requiring the lumber company to cease and desist from furnishing water to the railway company. A writ of review was issued out of the district court of Bonner county to review the proceeding, and this appeal is from the judgment of the district court, in effect, sustaining the commission. The proceeding on review was commenced before the enactment of chap. 72, Laws of 1921. The lumber company has filed in this court a very elaborate brief in which it has assigned and discussed a number of alleged errors, most of which it will not be necessary to discuss. Neither the commission nor the water company has appeared in this court and we are not favored with the views of the water company with respect to...