Mor-Gran-Sou Elec. Coop., Inc. v. Montana-Dakota Utilities Co.

Decision Date09 August 1968
Docket NumberMOR-GRAN-SOU,No. 8489,MONTANA-DAKOTA,8489
Citation160 N.W.2d 521
PartiesELECTRIC COOPERATIVE, INC., Applicant and Appellant, v.UTILITIES CO.; North Dakota Public Service Commission; and Ben J. Wolf, Richard A. Elkin, and Bruce Hagen, as Commissioners of the North Dakota Public Service Commission, Respondents. Civ.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. The writ of prohibition may issue to arrest or stay the proceedings of any inferior court, body or tribunal, when such proceedings are without or in excess of jurisdiction, and where there is not a plain, speedy and adequate remedy at law.

2. The writ of prohibition is not a writ of right. It is available only when an inferior court, body or tribunal is about to act without or in excess of its jurisdiction.

3. Where the Public Service Commission had already issued a temporary certificate of convenience and necessity authorizing temporary electric service to applicant, prohibition is not the proper remedy to cause revocation of the writ.

4. Prohibition is a preventative, rather than a corrective remedy.

5. The writ of prohibition is available to prohibit the doing of something, not to compel the undoing of something already done.

Pringle, Herigstad, Meschke, Loder, Mahoney & Purdy, Minot, for applicant and appellant.

William R. Pearce, of Pearce, Engebretson, Anderson & Schmidt, Bismarck for respondent Montana-Dakota Utilities Co.

John C. Stewart, Commerce Counsel, Public Service Commission, Bismarck, for respondents North Dakota Public Service Commission and Ben J. Wolf, Richard A. Elkin, and Bruce Hagen, as Commissioners.

STRUTZ, Judge.

Mor-Gran-Sou, an electric cooperative providing electric service in Morton, Grant, and Sioux counties, made application to the district court of Burleigh County for a writ of prohibition against the North Dakota Public Service Commission, which application was denied by the district court. This appeal is from the order dismissing the application for such writ.

Prior to November 27, 1967, the appellant had given notice to the Public Service Commission that it was interested in any application which might be made by or on behalf of Montana-Dakota Utilities Co., a public utility serving in the same area, for a certificate of convenience and necessity to extend electric service to any point in the three counties which the applicant serves and which is outside the corporate limits of any municipality in those counties. On November 27, 1967, Montana-Dakota Utilities Co., hereinafter referred to as 'MDU,' did make application for a temporary certificate of convenience and necessity to extend electric service to a building being constructed by one Ronald A. Thiel, which building was being erected adjacent to but outside the corporate limits of the city of Mandan in Morton County. The application for such temporary certificate alleged that an emergency existed which required the granting of a temporary certificate, in that Thiel had started construction of his building for which immediate electric service was needed. A temporary certificate was granted by the Public Service Commission on December 5, 1967, without a hearing first having been conducted and without the giving of any notice to the appellant, the rural electric cooperative operating in Morton County, and Thiel has been furnished electricity by MDU under such temporary certificate.

On or about the 14th of December 1967, following the granting of such temporary certificate, MDU filed its application with the Public Service Commission for a regular certificate of public convenience and necessity to furnish electric service to Thiel at such location. Attached to its application was a written appearance by Thiel, as customer, waiving notice of opportunity for hearing and waiving hearing, and requesting immediate service. On December 19, 1967, the North Dakota Public Service Commission issued its notice of opportunity for hearing in said matter, designating the proceeding as Case No. 7237, and causing such notice of opportunity for hearing to be served upon Mor-Gran-Sou by sending a copy thereof to its attorney by certified mail.

On December 26, 1967, the attorney for Mor-Gran-Sou filed with the Public Service Commission an objection and request for hearing in Case No. 7237, in which the appellant, Mor-Gran-Sour, objected to the application of MDU for certificate of public convenience and necessity and, further, requested a hearing on the issue of whether public convenience and necessity required the extension of service by MDU to the Thiel property located outside the city limits of Mandan.

On January 31, 1968, the Public Service...

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5 cases
  • Philip Morris v. Angeletti
    • United States
    • Maryland Court of Appeals
    • May 16, 2000
    ...(Mo.Ct.App.1980); State ex rel. Alfred v. Anderson, 87 N.M. 106, 107-08, 529 P.2d 1227, 1228 (1974); Mor-Gran-Sou Elec. Coop. v. Montana-Dakota Util. Co., 160 N.W.2d 521, 523 (N.D.1968); State ex rel. Stefanick v. Municipal Ct. of Marietta, 21 Ohio St.2d 102, 104, 255 N.E.2d 634, 635 44. Ma......
  • State ex rel. Link v. Olson
    • United States
    • North Dakota Supreme Court
    • November 6, 1979
    ...It is issued upon affidavit on the application of the person beneficially interested." In the case of Mor-Gran-Sou Elec. Coop. v. Montana-Dakota Util. Co., 160 N.W.2d 521 (N.D.1968), the petitioner sought a writ of prohibition against the Public Service Commission to arrest the furnishing o......
  • Beck v. Smith
    • United States
    • North Dakota Supreme Court
    • August 29, 1980
    ...she has requested; i.e. writ of prohibition. With regard to the writ of prohibition, this Court stated in Mor-Gran-Sou Elec. Coop v. Montana-Dakota Util. Co., 160 N.W.2d 521 (N.D.1968): "The writ is not a writ of right. It is an extraordinary writ, to be issued with caution, in cases of ext......
  • Sunbehm Gas, Inc. v. Lesmeister, 10047
    • United States
    • North Dakota Supreme Court
    • July 20, 1981
    ...or in excess of its jurisdiction. State ex rel. Link v. Olson, 286 N.W.2d 262 (N.D.1979); Mor-Gran-Sou Electric Cooperative, Inc. v. Montana-Dakota Utilities Company, 160 N.W.2d 521 (N.D.1968); Lynch v. District Court of Ward County, 48 N.D. 431, 185 N.W. 303 The provisions of Initiated Mea......
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