Nelson v. Public Service Co., 78-236

• Decision Date: 17 May 1979
• Docket Number: No. 78-236,78-236
• Parties: Rudolph S. NELSON, Jr. v. PUBLIC SERVICE COMPANY of New Hampshire.
• Court: New Hampshire Supreme Court

Page 623

402 A.2d 623

119 N.H. 327

Rudolph S. NELSON, Jr. v. PUBLIC SERVICE COMPANY of New Hampshire.

No. 78-236.

Supreme Court of New Hampshire.

May 17, 1979.

J. Michael Love, Manchester, for the Legislative Utility Consumers' Council, on behalf of Rudolph S. Nelson, Jr.

Sulloway, Hollis, Godfrey & Soden, Concord (Martin L. Gross, Concord, orally), for Public Service Co. of New Hampshire.

Thomas D. Rath, Atty. Gen., and David William Jordan, Asst. Atty. Gen., for the State as amicus curiae.

DOUGLAS, Justice.

This case requires us to decide whether a district court's small claims jurisdiction extends to a ratepayer's action against a public utility to recover an alleged utility rate overcharge. The defendant appeals from a verdict in plaintiff's favor in the amount of $21.73 in a small claims action brought in the Manchester District Court. The defendant's exceptions to the denials of its motions to dismiss and set aside the verdict were transferred by O'Neil, J. We affirm.

On April 27, 1977, the defendant, Public Service Company of New Hampshire filed a new tariff with the public utilities commission designated as Tariff No. 21. The filing, pursuant to RSA 378:3, was subsequently suspended for investigation, but on November 21, 1977, the defendant notified the commission that it would exercise its authority under RSA 378:6, and, under bond, put the tariff into effect on December 3, 1977. The commission accepted the bond. The commission sent the defendant a letter which stated that because of RSA 378:6, the new rate was going into effect "without approval by the Commission" and that the "Commission has no authority under the statute cited with respect to the Company placing the rates into effect." Finally, the commission told the defendant to "give notice to its customers of its rates by an appropriate insert accompanying the monthly bills to each customer on which said rates will be applicable."

According to the commission's Tariff Filing Rule No. 29, "(u)nless otherwise expressly provided, newly established rates shall be First used in the rendering of all bills based on successive meter readings, the latter of which is taken on or after the effective date." (Emphasis added.) The plaintiff's meter had been read on November 10, 1977, some twenty-four days before the 17% Rate increase went into effect. It was next read on December 13, ten days after the new rate went into effect. The plaintiff's bill, however, reflected the new rate over the entire thirty-four-day period since his meter had last been read. Plaintiff computed the increase at $27.47 for the entire period and prorated the charge to $21.73 for the twenty-four days he felt he had been overcharged. He successfully sought relief in small claims court to recover $21.73, asserting that the defendant had improperly collected the rate prior to the rate's legal effective date.

The defendant initially asserts that the district courts of this State have no jurisdiction to hear any case involving electric utility rates. The defendant points out that since 1911 (Laws 1911, ch. 164) and 1913 (Laws 1913, ch. 145), the commission has had comprehensive powers concerning the regulation of public utilities. The commission quite correctly has "full control over the rates to be charged" by regulated utilities. Lorenz v. Stearns, 85 N.H. 494, 506, 161 A. 205, 212 (1932), Cert. denied, 287 U.S. 565, 53 S.Ct. 23, 77 L.Ed. 498 (1932). Although Laws 1917, ch. 164 vested the commission with "important judicial duties and . . . with large administrative and supervisory powers," Parker-Young Co. v. State, 83 N.H. 551, 556, 145 A. 786, 789 (1929), the legislature did not enact a method for the filing of individual complaints against utilities with the commission until 1951. Laws 1951, ch. 203.

In its present form, RSA 365:1 provides that "any person May make complaint to the commission" concerning the actions of a public utility. (Emphasis added.) In most matters, this complaint method is the logical recourse for complainants because of the commission's expertise, developed over the years in the regulation of utilities and their rates. But the commission does not have exclusive jurisdiction over all matters concerning public utilities. See, e. g., Blevens v. New England Tel. & Tel. Co., 116 N.H. 247, 356 A.2d 696 (1976). The language of RSA 365:1 contains no reference to exclusive or primary jurisdiction. The legislature has established such jurisdiction of other State agencies and commissions. For example, the ballot-law commission has "jurisdiction . . . exclusive of all other remedies" to review written objections filed with the secretary of state concerning primary nominations, RSA 68:3 I (Supp.1977), nominations by petition, and the filling of vacancies in nominations occurring after the primary, RSA 68:3 II (Supp.1977). RSA 68:3 III. RSA 273-A:6 grants the public employee labor relations board "primary jurisdiction of all violations of RSA 273-A:5 (unfair labor practices)." The language in these statutes is dissimilar to the permissive language of RSA 365:1. We note that this case does not present the issue of this court's review of an appeal from a commission order not brought within the "well-ordered and well-articulated scheme considered necessary in the review of public utility regulation" of RSA ch. 541. See Nashua v. Public Utilities Commission, 101 N.H. 503, 507, 148 A.2d 277, 280 (1959). The commission's only action in this case was to accept the bond filed by the company under RSA 378:6; it did not authorize or issue an order concerning the rate.

In contrast to the permissive jurisdiction granted to the commission the statutory grant of jurisdiction to the district courts is broad and specific. RSA 502-A:14 I (Supp.1977) provides that "all district courts shall have Original and Exclusive jurisdiction of civil cases in which the damages claimed do not exceed five hundred dollars" subject to appeal to this court. The permissive jurisdiction granted to the commission by the legislature does not deprive the district courts of their jurisdiction.

The issue before us does not involve the type of rate case that is usually within the commission's sole expertise. It is simply a case involving a claim by a ratepayer that he has been overcharged, the resolution of which involves interpretation of a statute. The courts may properly decide this purely legal question. See Tremblay v. Town of Hudson, 116 N.H. 178, 179-80, 355 A.2d 431, 432 (1976); Metzger v. Town of Brentwood, 115 N.H. 287, 290-91, 343 A.2d 24, 26 (1975). This case does not involve the complex issues of rates, fair return, distribution of rates among classes, or other matters better left to the commission. Ratepayers, of course, may not attempt to challenge the validity of rates or rate components in the district courts in the guise of small claims actions.

RSA 378:6 provides that if a utility's proposed rate schedule cannot be acted upon by the commission within six months, the utility may post a bond and put the rates into effect, thus superseding an existing lower rate tariff. The commission's only role then is to set an adequate bond; it does not set a rate. The utility may collect its new proposed rate during the time period between "six months from the originally proposed effective date" and the end of the suspension period. Id. The new rate, therefore, cannot be imposed before six months from the rate's originally proposed effective date, which, in the present case, was June 1, 1977. The commission...