In re Organization of Sheridan County Power District

• Decision Date: 17 April 1945
• Docket Number: 2315
• Citation: 157 P.2d 997,61 Wyo. 365
• Parties: IN THE MATTER OF THE ORGANIZATION OF THE SHERIDAN COUNTY POWER DISTRICT. v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, A CORPORATION, and THE SHERIDAN WYOMING COAL COMPANY, INC., A CORPORATION, Objectors and Respondents SHERIDAN COUNTY POWER DISTRICT, ET AL., Petitioners and Appellants,
• Court: Wyoming Supreme Court

157 P.2d 997

61 Wyo. 365

IN THE MATTER OF THE ORGANIZATION OF THE SHERIDAN COUNTY POWER DISTRICT.

SHERIDAN COUNTY POWER DISTRICT, ET AL., Petitioners and Appellants, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, A CORPORATION, and THE SHERIDAN WYOMING COAL COMPANY, INC., A CORPORATION, Objectors and Respondents

No. 2315

Supreme Court of Wyoming

April 17, 1945

APPEAL from District Court, Sheridan County; JAMES H. BURGESS Judge.

Proceeding in the matter of the petition filed by certain freeholders for organization of the Sheridan County Power District in which the County Commissioners and City of Sheridan joined and to which the Chicago, Burlington & Quincy Railroad Company and another filed objections. From a judgment denying the petition, petitioners appeal.

Judgment affirmed.

Affirmed.

For the Objectors and Respondents the cause was submitted on the brief of John F. Raper, esq., and R. G. Diefenderfer, Esq. both of Sheridan, Wyoming; George A. Layman, Esq., and Philip S. Garbutt, Esq., both of Sheridan, Wyoming, and Joseph A Matter, Esq., of Chicago, Illinois, of counsel, and oral argument by Mr. Diefenderfer, Mr. Matter and Mr. Layman.

POINTS OF COUNSEL FOR RESPONDENTS

The word "necessity" when used in statutes of the kind here in question can have no accepted meaning and must be construed in the light of its use in the particular statute in question. It has been generally held to mean something more nearly akin to convenience than the definition found in standard dictionaries would indicate. Wisconsin Telephone Company v. Railroad Commission, 156 N.W. 614. Aurora and C. Railway Company v. Harvey, 53 N.E. 331.

Drainage and irrigation district laws have been regarded as valid and constitutional in Wyoming ever since their enactment. A large number of bonds issued under their provisions are now outstanding. Sullivan v. Blakesley, 35 Wyo. 73, 246 P. 918.

And this court has from time to time in its decisions recognized the jurisdiction of the district court over the operations of such districts. In re Greybull Valley Irrigation District, 52 Wyo. 479, 76 P.2d 339.

For the Objectors and Respondents the cause was submitted on the brief of John C. Pickett, Esq., of Cheyenne, Wyoming, H. Glenn Kinsley, Esq., and R. E. McNally, Esq., both of Sheridan, Wyoming, and oral argument by Mr. Pickett and Mr. Kinsley.

POINTS OF COUNSEL FOR RESPONDENTS

Chapter 87 W. R. S. 1931 applies only to rural areas and in its original form contemplated the creation of a district for the construction of rural electric lines.

Chapter 51, by its very terms, is only an addition to the power provided for in Chapter 87 in that revenue bonds may be issued. If Chapter 51 is considered separately from Chapter 87, there is no method of creating a power district at all.

It seems almost too clear for argument that Chapters 87 and 51 pertain only to rural districts and that this was the intention of the Legislature when such Acts were passed.

In arriving at a determination of legislative intent, it is proper for the Court to consider not only the legislation adopted respecting the subject matter of the inquiry but also to investigate such information as may be available, and of which the Court may properly take judicial notice, and which has a bearing on the legislative intent and purpose. People v. Shawyer, 30 Wyo. 366, 222 P. 11; Bunton v. Rock Springs Grazing Association, 215 P. 244, 29 Wyo. 461.

The Legislature has consistently refused to authorize municipalities to finance the purchase of public utilities by the use of this method of financing and the proposal is an attempt to accomplish indirectly that which the Legislature has consistently refused to authorize municipalities to do. Attempts which have been made in this State by municipalities to acquire power plants are discussed in Whipps, et al. v. Town of Greybull, et al., 56 Wyo. 355, 109 P.2d 805, and Jensen v. Town of Afton, 143 P.2d 190. If the purpose sought to be accomplished in those cases could have been accomplished by the mere creation of a power district, without the necessity of submitting the matter to a vote of the people, it is reasonable to suppose that the latter method would have been resorted to and the purpose thus accomplished. Jensen v. Town of Afton, supra, put an end to any question as to whether or not municipalities in Wyoming could issue revenue bonds for the purpose of acquiring public utilities.

Power district laws do not grant power to the District to acquire the plant and property of a public utility furnishing electricity to an incorporated city or town.

Lakota Oil & Gas Co. v. City of Casper, 57 Wyo. 329, 116 P.2d 861; Jensen v. Town of Afton, 143 P.2d 190.

A power district is a municipal corporation and can not be created without a vote of the people. 29 C. J. S. 497; 37 Am. Jur. 618. State v. Lincoln County Power District No. 1, 111 P.2d 528, at 532 (Nev.).

The allegations of the petition and the proof offered in support thereof are insufficient to sustain a decree creating a power district.

Ch. R. I. & P. Ry. Co. v. State, 258 P. 874 (Okla.); Abbott v. Public Utilities Commission (R. I.) 136 A. 490, 491; Ch. R. I. & P. Ry. Co. v. State, 252 P. 849 (Okla.); In re Washington Avenue, 139 A. 239 (N. J.); Reusch v. Northern Ohio Traction & Light Co., 34 Ohio Cir. Ct. R. 540, 548; Ex parte Ruppe, 252 P. 751, 80 Cal.App. 629; Words and Phrases, Third Series, Volume 5, page 358.

Chapter 51 was not enacted in compliance with requirements of the Constitution of the State of Wyoming. Article III, Section 26 of the Constitution of the State of Wyoming.

Chapter 51 purports to authorize the State to engage in work of internal improvement without required authorization of vote of the people.

Article XVI, Section 6 of the Constitution provides that the State shall not engage in any work of internal improvement unless authorized by a two-thirds vote of the people.

TIDBALL, District Judge. BLUME, C. J., and RINER, J., concur.

OPINION

TIDBALL, District Judge.

This case involves the validity and application of Chapter 127, Session Laws of 1931, now Chapter 87, W. R. S. 1931, and Chapter 51, Session Laws of 1933, Special Session. These are the power district laws of the State of Wyoming and will be referred to in this opinion as the 1931 act or law and the 1933 act or law.

Seventy-three freeholders of Sheridan County filed a petition in the District Court of Sheridan County praying for the organization of the Sheridan County Power District under the provisions of the laws above mentioned. It was proposed in the petition that the power district should be co-extensive with the boundaries of Sheridan County, should include the city of Sheridan, and that the power district to be created should purchase the Sheridan County Electric Company, a corporation, the company now furnishing light and power to the city of Sheridan and outlying territory, it being alleged that said company is a subsidiary of and owned by Federal Light and Traction Company, which company has been ordered by the United States Securities and Exchange Commission to dispose of its interest in the Sheridan County Electric Company. It is further alleged that it is desirable and necessary that the electric company be sold to the proposed district rather than to an outsider so that the consumers of electricity shall receive the benefit of lower electric rates than can and will be furnished by public ownership of the light plant. No Certificate of Necessity from the State Public Service Commission was attached to the petition as the 1931 law requires because, as the petition alleges, it is not intended to construct a new or competing system but to acquire an existing system, and, further, because, under the 1933 law, it is alleged no such certificate is required. It is also alleged that the names of all freeholders in said proposed district are not attached, to the petition, as required by the 1931 law, because this is not necessary where only revenue secured bonds are to be issued which will not constitute a lien on the lands in the district. After alleging the intention of the district to co-operate with the United States and the State of Wyoming in every way possible, it is alleged that the bonds proposed to be issued will be a lien only upon the plant and equipment and upon the revenue derived from operating the plant.

Upon the filing of this petition the court set the matter down for hearing on July 24, 1944, and caused notice to be published. The two respondents were the only objectors to the petition. The Board of County Commissioners of the county and the city by its Mayor and Commissioners joined in the petition. The objections to the granting of the petition were generally upon constitutional grounds and also that the law under which the district was proposed contemplates only rural electrification and not the furnishing of electricity to cities, and that the plan if carried out would be generally detrimental to the citizens.

The District Court at the hearing of the petition denied the same on many grounds, holding that the 1933 act was unconstitutional in several respects; that there was no authority granted by the acts in question to acquire an electric light plant such as the Sheridan County Electric Company; that the acts do not authorize the inclusion of a city within a district formed thereunder; that no sufficient necessity for the creation of the power district appeared and that no certificate of necessity from the Public Service Commission of Wyoming was obtained and attached to or accompanied the petition, as required by the 1931 act. Regarding this latter finding, after the matter came on for hearing and was concluded, the petitioners asked leave to...