Montana-Dakota Utilities Co. v. Johanneson

Decision Date23 August 1967
Docket NumberNo. 8355,MONTANA-DAKOTA,8355
Citation153 N.W.2d 414
PartiesUTILITIES CO., Northern States Power Company, and Otter Tail Power Company, Plaintiffs, Respondents, and Cross-Appellants, v. Helgi JOHANNESON, as Attorney General for the State of North Dakota, et al., Defendants and Respondents, and Baker Electric Cooperative, Inc., et al., Defendants, Appellants, and Cross-Respondents. Civ.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. An appeal in an action tried to the court, demanding trial de novo, raises all issues in the case on appeal, those that are favorable as well as those that are unfavorable to the appellants. No additional issues are raised by a cross-appeal of the respondents.

2. Where there are no genuine issues of fact for the trial court to determine, entry of summary judgment by the trial court, on motion, is proper. Rule 56, N.D.R.Civ.P.

3. An Act of the Legislature can be held unconstitutional only if at least four of the judges of this court so determine. Sec. 89, N. Dak. Constitution.

4. An Act of the Legislature is presumed to be constitutional, and in case of doubt as to its constitutionality such doubt must be resolved in favor of its validity.

5. Every reasonable presumption is in favor of the constitutionality of a law passed by the Legislature. This presumption is conclusive unless it is clearly shown that the statute violates some provision of the Constitution of the State or of the United States.

6. The power to hold an Act of the Legislature invalid is one of the highest functions of the courts, and such power should be exercised with great restraint.

7. Where the language of a statute is clear, certain, and unambiguous, the courts have the duty of giving effect to the legislative intent expressed by the Act.

8. The wisdom and the necessity of the law are matters of policy for the Legislature, and not matters for the court to consider in passing on the validity of an Act of the law-making body.

9. To invalidate a statute because of unlawful delegation of legislative authority, it must clearly appear that the power which is delegated is, in fact, legislative.

10. Where the Legislature authorizes the electric co-operative nearest the rural area proposed to be served by a public utility to determine whether the public utility or the co-operative shall serve such area, it clearly has made an unlawful delegation of legislative authority to the electric co-operative and such delegation is unconstitutional and in violation of Section 25 of the Constitution.

11. Constitutional limitations requiring all laws to have a uniform operation, and prohibiting any special privilege or immunity to any class of citizens, do not prohibit classification, provided it is reasonable for the purposes of the legislation, is based upon proper and justifiable distinctions, is not arbitrary, and is not a subterfuge to shield one class or to burden another, or to oppress unlawfully in its administration.

12. The question of whether parts of a statute which are constitutional shall be upheld and given effect, even though portions of the law are struck down as unconstitutional, involves primarily the ascertainment of the intention of the Legislature. If the objectionable parts are severable from the rest of the law in such a way that it would be presumed that the Legislature would have enacted such portions without the invalid parts, the failure of the invalid portions will not render the entire statute invalid.

13. Where the constitutional and unconstitutional portions of a statute are so dependent upon one another as to warrant the belief that the Legislature intended them to take effect in their entirety or not at all, it follows that, if the whole cannot be given effect, it must be presumed that the Legislative Assembly would not have passed the valid portions alone, and the entire law then is invalid.

14. Where a part of a law is unconstitutional, that fact does not require the courts to declare the remainder void also, unless all provisions are so connected and dependent upon each other that it cannot be presumed that the Legislature would have passed one without the other.

15. For reasons stated in the opinion, Section 3 of Chapter 319 of the 1965 Session Laws is found to be unconstitutional and invalid.

Pearce, Engebretson, Anderson & Schmidt, Bismarck, for plaintiff, respondent, and cross-appellant Montana-Dakota Utilities Co., Earl H. A. Isensee, Minneapolis, Minn., of counsel.

Wheeler & Daner, Bismarck, for plaintiff, respondent, and cross-appellant Northern States Power Co., Nelson, Brusven & Sommers, Minneapolis, Minn., of counsel.

Wheeler & Daner, Bismarck, for plaintiff, respondent, and cross-appellant Otter Tail Power Co., Field, Arvesen, Donoho & Lundeen, Fergus Falls, Minn., of counsel.

Paul M. Sand, First Asst. Atty. Gen., Bismarck, for Helgi Johanneson, Atty. Gen., defendant and respondent.

Helgi Johanneson, Atty. Gen., John E. Adams, Asst. Atty. Gen., and Norton M. Hatlie, Sp. Asst. Atty. Gen., and Commerce Counsel of Public Service Commission, Bismarck, for defendant and respondent Public Service Commissioners.

James Morris, Bismarck, Vogel & Bair, Mandan, Frederick Bernays Wiener and William C. Wise, Washington, D.C., W. T. DePuy, Grafton, Roy A. Holand, LaMoure, Paul G. Kloster, Dickinson, Herbert L. Meschke, Minot, Alfred A. Thompson, Bismarck, Myron H. Bright, Fargo, William Lindell, Washburn, Eugene Anthony, Watford City, Q. R. Schulte, Stanley, L. G. Ulmer, Mandan, Calvin Calton, Crosby, O. B. Benson, Bottineau, Robert Chesrown, Linton, Kent Johanneson, Langdon, Fabian Noack, Carrington, Johnson & Milloy, Wahpeton, Maurice E. Cook, Bowman, John Richardson, Hazen, and Bjella, Jestrab, Neff & Pippin, Williston, for defendant, appellant, and cross-respondent electric co-operatives.

STRUTZ, Chief Justice (on reassignment).

Three investor-owned public utilities, Montana-Dakota Utilities Company, Northern States Power Company, and Otter Tail Power Company, doing business in the State of North Dakota, bring this action for a declaratory judgment against twenty-one rural electric co-operatives, joining the Attorney General of the State and members of the Public Service Commission of the State of North Dakota who, by the law which is being challenged, are required to administer its provisions. This action is brought to test the validity of Chapter 319 of the Session Laws of 1965, and to seek an injunction against its enforcement.

After issue was joined, both the plaintiffs and the defendants moved for summary judgment. By moving for summary judgment, all parties concede that there is no genuine issue as to any material facts to be determined in the action, and they seek to have the court enter a declaratory judgment under Rule 56, North Dakota Rules of Civil Procedure.

In passing on the motion for summary judgment, the trial court held that a portion of Section 3 of the Act was unconstitutional. It further held that the portion found to be invalid was severable from the balance of the law, and that the balance of the Act was valid. Judgment was entered accordingly.

The defendant co-operatives appealed from such summary judgment, and from the whole thereof, demanding trial de novo in this court. The plaintiff public utilities cross-appealed from that portion of the summary judgment which held a portion of the Act constitutional and from the finding of the trial court that the portion held unconstitutional was severable from the rest of the Act.

The Act in question is generally referred to as the 'Territorial Integrity Law.' Its purpose was to amend Sections 49--03--01 and 49--03--05 of the North Dakota Century Code which required a public utility, before beginning construction or operation of a public utility plant or system, or an extension thereof, to obtain from the Public Service Commission a certificate of public convenience and necessity. Section 2 of the Act provides that no electric public utility shall begin construction or operation of its public utility plant or system, or extension thereof, without first obtaining from the Public Service Commission such certificate of public convenience and necessity, and then goes on to provide:

'* * * nor shall such public utility henceforth extend its electric transmission or distribution lines beyond or outside of the corporate limits of any municipality, nor shall it serve any customer where the place to be served is not located within the corporate limits of a municipality, unless and until, after application, such electric public utility has obtained an order from the public service commission of the state of North Dakota authorizing such extension and service and a certificate that public convenience and necessity require that permission be given to extend such lines and to serve such customer.'

Section 3 of Chapter 319, the law being attacked, reads as follows:

'The public service commission of the state of North Dakota shall not issue its order or a certificate of public convenience and necessity to any electric public utility to extend its electric distribution lines beyond the corporate limits of a municipality or to serve a customer whose place to be served is located outside the corporate limits of a municipality unless the electric co-operative corporation with lines or facilities nearest the place where service is required shall consent in writing to such extension by such electric public utility, or unless, upon hearing before the commission, called upon notice, it shall be shown that the service required cannot be provided by an electric co-operative corporation. Such certificate shall not be necessary if the public service commission approves an agreement between a public utility and the rural electric co-operative serving the area which includes the station to be served and which agreement designates said station to be in an area to be served by the...

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