New Mexico Elec. Service Co. v. Lea County Elec. Co-op., Inc.

• Decision Date: 14 March 1966
• Docket Number: No. 7623,7623
• Citation: 415 P.2d 556,76 N.M. 434,1966 NMSC 46
• Parties: NEW MEXICO ELECTRIC SERVICE COMPANY, a corporation, Petitioner- Appellee, v. LEA COUNTY ELECTRIC COOPERATIVE, INC., a corporation, Respondent-Appellant, Central Valley Electric Cooperative, Inc., a corporation, Respondent-Appellee and Cross-Appellant, Continental Oil Company, a corporation, Respondent-Appellee, Public Service Commission of New Mexico, Respondent-Appellant.
• Court: New Mexico Supreme Court

Page 556

415 P.2d 556

76 N.M. 434

NEW MEXICO ELECTRIC SERVICE COMPANY, a corporation Petitioner- Appellee, v. LEA COUNTY ELECTRIC COOPERATIVE, INC., a corporation Respondent-Appellant Central Valley Electric Cooperative, Inc., a corporation Respondent-Appellee and Cross-Appellant, Continental Oil Company, a corporation, Respondent-Appellee, Public Service Commission of New Mexico, Respondent-Appellant.

No. 7623.

Supreme Court of New Mexico.

March 14, 1966.

Rehearing Denied July 1, 1966.

Heidel, Swarthout & Samberson, Lovington, for appellant Lea County Electric Coop., Inc.

Earl E. Hartley, Atty. Gen., Frederick G. Von Huben, John Jennings, Special Asst. Attys. Gen., Santa Fe, for appellant Public Service Commission of N.M.

Neal & Neal, Hobbs, Atwood & Malone, Roswell, for appellee N.M. Electric Service Co.

William M. Siegenthaler, Artesia, John E. Hall, Albuquerque, for appellee Central Valley Elec. Coop., Inc.

Kellahin & Fox, Santa Fe, for appellee Continental Oil Co.

MOISE, Justice.

This is an appeal wherein Lea County Electric Cooperative, Inc., hereinafter referred to as 'Central Valley,' and the Public Service Commission of New Mexico, hereinafter referred to as 'Commission,' are the appellants; and New Mexico Electric Service Company, hereinafter referred to as 'Service Company' and Continental Oil Company, hereinafter referred to as 'Continental,' are the appellees. Continental has filed no brief but was present at the oral arguments.

The litigation had its inception with the filing by Lea County of a complaint with the Commission in which it was alleged that a proposed expansion by Service Company into the Maljamar area of Lea County, New Mexico, would constitute an unreasonable interference with the existing service and system of Lea County, and would amount to the pirating by Service Company of Continental, one of Lea County's customers. A restraining order was sought to prevent construction by Service Company of the proposed line. Service Company answered by alleging that it had contracted for a point of delivery to it from Southwestern Public Service Co., at a point approximately three miles from the point of delivery to Continental; that it had a certificate of public convenience and necessity to provide service in the area, had made arrangements to do so, was ready, willing and able to provide the service, and that it was in the public interest and in accord with its contractual undertakings that it provide the service. An Order to Cease and Desist and Notice of Hearing were issued by the Commission. Thereafter, Central Valley and Continental both were permitted to intervene to protect substantial rights which would be affected by the proceedings. After hearing by the Commission, it entered its opinion in which it made findings of fact and conclusions of law generally favoring Lea County and made permanent an order directing Service Company to cease and desist from the construction of plants or facilities for the construction of plants or facilities for the purpose of rendering electric service to Continental. A timely motion for rehearing was filed by Service Company, in accordance with § 68--8--16, N.M.S.A.1953. It was not acted upon by the Commission within 20 days and was accordingly deemed refused (§ 68--8--16, supra). A petition for review as provided in § 68--9--1, N.M.S.A.1953, was filed by Service Company in the district court of Lea County, New Mexico, where the controversy had its origin.

Thereafter, the district court filed its decision wherein it set forth its findings of fact and conclusions of law determining that certain findings and conclusions of the Commission, differing from those of the court, were not supported by substantial evidence and were unlawful and unreasonable and, based thereon, the order of the Commission was ordered annulled and vacated.

Although a point is made by appellant Lea County, and the Commission makes reference to the same problem, the questions concerning the proper scope of review have been decided by this court since the instant case was tried and briefed. Llano, Inc. v. Southern Union Gas Co., 75 N.M. 7, 399 P.2d 646. Under the holding in that case the court did not err in making its own findings of fact setting forth the basis for its conclusion that the Commission's order was unlawful and unreasonable and should be annulled and vacated.

This brings us to a consideration of the court's findings which we set out in full, together with its conclusions 1 and 2, because we believe that the issues which form the basis for the court's decision are clearly apparent therefrom:

'FINDINGS OF FACT

1. Under date February 25, 1953, the Public Service Commission of New Mexico issued to New Mexico Electric Service Company a Certificate of Convenience and operate a public utility system for the generation and supplying of electric power in a large area which embraces most of the south half of Lea County, and including Section 21, Township 17 South, Range 32 East, N.M.P.M., in Lea County, New Mexico.

2. Under the undisputed evidence in the record, in the latter part of 1960 a request was made of New Mexico Electric Service Company by Continental Oil Company to provide it with public electric utility service in Section 21, Township 17 South, Range 32 East, N.M.P.M., Lea County, New Mexico.

3. Under the undisputed evidence in the record, New Mexico Electric Service Company entered into a contract with Continental Oil Company to provide it with electric service required by said company at said point. The service so to be provided was for the purpose of water flooding and use in the pumping of oil wells in the area included in Township 17 South, Ranges 32 and 33 East, all of which is within the area included in the Certificate of Convenience and Necessity issued to New Mexico Electric Service Company.

4. There is no evidence whatever in the record before the Public Service Commission of New Mexico that any demand to provide electric utility service to any person in Townships 16 and 17, Ranges 32 and 33 East has ever been made of New Mexico Electric Service Company before the request of Continental Oil Company.

5. There is no evidence in the record that New Mexico Electric Service Company has not at all times since the issuance of said Certificate provided public electric utility service to all persons within the area of the Certificate upon demand therefor.

6. New Mexico Electric Service Company, under the undisputed evidence in the record, within one year from the date of the issuance of the Certificate of Convenience and Necessity began the construction and extension of its plant, line, system, works and facilities of the utility throughout the area of its Certificate in good faith, and has prosecuted the same with reasonable diligence from the date of the issuance of the Certificate to the date of the hearing before the Public Service Commission of New Mexico from which this appeal was taken.

7. Under the undisputed evidence in the record, upon request by Continental Oil Company for service in Section 21, Township 17 South, Range 32 East, N.M.P.M., Lea County, New Mexico, New Mexico Electric Service Company contracted to provide said service, purchased the necessary equipment therefor, and is ready willing and able to perform the service.

8. There is no substantial evidence in the record from which the Public Service Commission of New Mexico could find that New Mexico Electric Service Company had not at all times constructed and extended the public utility system authorized in its Certificate of Convenience and Necessity within the area of the Certificate and within the area involved in this action in good faith and with reasonable diligence.

9. Under the undisputed evidence in the record there are no facilities in the area owned by any of the parties to this action which are sufficient to provide the electric utility service required by Continental Oil Company, and it will be necessary to construct the facilities necessary to provide the amount of service required by it under the undisputed evidence before the Commission.

CONCLUSIONS OF LAW

1. The Certificate of Convenience and Necessity issued to New Mexico Electric Service Company under date of February 25, 1953, is in full force and effect throughout the area of its Certificate and in Township 17 South, Ranges 32 and 33 East, N.M.P.M., Lea County, New Mexico, and under the Public Utility Act of New Mexico, said company is obligated and authorized to provide public utility service to customers desiring the same within the area of its Certificate, and any finding or conclusion of the Public Service Commission of New Mexico to the contrary is not supported by any substantial evidence in the record, and is unlawful and unreasonable.

2. Section 21, Township 17 South, Range 32 East, N.M.P.M., Lea County, New Mexico, is in the area in which New Mexico Electric Service Company holds a Certificate of Convenience and Necessity that is in full force and effect and such company is entitled to perform its contract with Continental Oil Company, and is entitled to serve the electric utility needs of Continental Oil Company at said point and in the other portions of its certified areas in which public utility service may be demanded, in accordance with the rates of said company from time to time in effect and subject to the proper jurisdiction of the Public Service Commission of New Mexico over the rates and service regulations of electric utility companies, and any finding or conclusion of the Public Service Commission of New Mexico to the contrary is not supported by any substantial evidence in the record, and is unlawful and unreasonable.'

In addition to the facts concerning Service Company's certificate, as set out in the findings above, mention should be made that Lea County is a rural electric cooperative organized in 1946 under the provisions of the New Mexico Rural Cooperative Act (§§...