Nashua v. Public Utilities Commission

• Decision Date: 30 January 1959
• Citation: 101 N.H. 503,148 A.2d 277
• Parties: , 28 P.U.R.3d 80 NASHUA v. PUBLIC UTILITIES COMMISSION of New Hampshire.
• Court: New Hampshire Supreme Court

Page 277

148 A.2d 277

101 N.H. 503, 28 P.U.R.3d 80

NASHUA v. PUBLIC UTILITIES COMMISSION of New Hampshire.

Supreme Court of New Hampshire.

Jan. 30, 1959.

Rehearing Denied Feb. 20, 1959.

Leo R. Lesieur, City Sol., Nashua, for plaintiff.

Sulloway, Hollis, Godfrey & Soden and Joseph S. Ransmeier, Concord, for Pennichuck Water Works.

The Public Utilities Commission furnished no brief.

KENISON, Chief Justice.

The plaintiff attacks the power of the Public Utilities Commission after investigation under RSA 378:5, 7 to allow the utility's increased water rates which were filed no November 7, 1957 (RSA 378:1) to be applied to bills issued for the full last quarter of the year. The plaintiff does not question the right of the utility to increased rates but only the effective date thereof. Since the increased rates as filed became effective December 31, 1957, and were to apply to all bills rendered on or after January 1, 1958, it is claimed that this is a retroactive increase in violation of the Commission's rules and orders and RSA 378:3. That statute reads as follows: 'Change. Unless the commission otherwise orders, no change shall be made in any rate, fare, charge or price, which shall have been filed or published by a public utility in compliance with the requirements hereof, except after thirty days' notice to the commission and such notice to the public as the commission shall direct.' It is the contention of the utility that the introductory phrase of this statute 'unless the commission otherwise orders' grants the Public Utilities Commission the authority which it exercised.

At the threshold of this case the plaintiff is confronted with two barriers which it is claimed preclude relief. First, it is contended that certiorari is not a proper remedy to review the action or decision of the Public Utilities Commission in any situation. Secondly, it is contended that the plaintiff has waived its right to review the Commission's action by failing to pursue its remedies under the exclusive statutory review provided by RSA 541:1, 22, and in the circumstances of this case is chargeable with laches in instituting its petition in this court. These questions are necessarily interrelated.

The Supreme Court has comprehensive and discretionary power with respect to extraordinary remedies and it is specifically provided that it 'may issue writs of certiorari.' RSA 490:4. While our cases have allowed some expansion of the conventional scope of the writ of certiorari (Sinkevich v. Nashua, 97 N.H. 262, 264, 86 A.2d 562), this has not been done in disregard of existing statutes regulating review and appeal.

It is unnecessary for us to decide whether there is ever any situation in which an order of the Public Utilities Commission can be reviewed by certiorari. However, in this connection the observations of an authority on administrative law are pertinent. Davis, Administrative Law (1951) p. 794: 'In their development of the extraordinary remedies the courts have largely lost sight of the elementary proposition that the purpose of procedural law is to facilitate decision of cases on the merits. One may read a thousand cases on the technical refinements of the extraordinary remedies before encountering a flash of insight and common sense such as the New Hampshire court has expressed.' The author then quotes in part from Dinsmore v. Mayor and Aldermen, 76 N.H. 187, 190, 81 A. 533, 535, which reads as follows: 'But in this state it is unimportant whether the process be called certiorari, or be given some other Latin or English name. If it is an appropriate and convenient mode of vindicating legal right, it is perhaps not essential that it should have a technical name. The superintending power of the court over inferior tribunals does not depend upon, and is not limited by, technical accuracy of designation of legal forms of action. The parties' rights in this action do not depend upon our definition of certiorari. They are entitled under the established practice in this state to the most convenient procedure for the settlement of their controversy. Boody v. Watson, 64 N.H. 162, 9 A. 794.' See also, 3 Davis, Administrative Law Treatise § 24.06, p. 426 (1958).

Certiorari is available if no appeal is provided (Winn v. Jordan, 101 N.H. 65, 133 A.2d 485) but is not allowed if the statute has provided ample relief. It 'is established law that where an adequate remedy is available...