Parker-Young Co. v. State

• Decision Date: 02 April 1929
• Parties: PARKER-YOUNG CO. et al. v. STATE. BAKER RIVER LIGHT & POWER CO. v. SAME.
• Court: New Hampshire Supreme Court

145 A. 786

PARKER-YOUNG CO. et al.

v. STATE.

BAKER RIVER LIGHT & POWER CO.

v. SAME.

Supreme Court of New Hampshire.

April 2, 1929.

Appeals from Public Service Commission.

Petition by the Baker River Light & Power Company to acquire the electric utility property of Fox & Putnam. From reports and orders of the public service commission granting the petition, the Parker-Young Company, Fox & Putnam, and E. B. Conant appeal. Remanded.

Appeals (1) by the Parker-Young Company and Fox & Putnam, and (2) by the Parker-Young Company and E. B. Conant, from the reports and orders of the public service commission, both filed June 8, 1928.

The Parker-Young Company, hereinafter called Parker-Young Co., is a New Hampshire corporation having its principal place of business in Lincoln. Its business is primarily manufacturing, but it sells surplus electricity to the residents of that town. Fox & Putnam is a copartnership engaged in furnishing electricity to the people of the village of North Woodstock in the town of Woodstock, which adjoins Lincoln on the south. The Baker River Light & Power Company, hereinafter called the Baker River Co., is a New Hampshire corporation having its principal place of business at Meredith, and conducts a public utility business in Rumney, Warren, and Wentworth. It is a subsidiary of the Utility-Power Company, which has a large hydro-electric development on the Pemigewasset river in Bristol and sells current at wholesale to municipalities and distributing companies in the central and northern parts of the state, including the Baker River Co. The Parker-Young Co. and Fox & Putnam on June 1, 1927, filed a joint petition with the public service commission for authority on the part of the partnership to transfer, and on the part of the company to purchase, the public utility business of said Fox & Putnam and to do an electric public utility business in Woodstock. A hearing was had thereon October 26, and report filed November 3, 1927, denying the petition. A motion for rehearing by Parker-Young Co. was filed November 18 and denied on November 23.

In the meantime,, to wit, on October 27th, the Baker River Co. had filed its petition for authority to acquire the electric utility properly of Fox & Putnam, and to extend its lines to the towns of Campton, Thornton, and Woodstock and do a public utility business therein. Such a petition had been anticipated and considered in the hearings on the Parker-Young Co.'s petition. A hearing was had on the Baker River Co.'s petition on November 16, and on November 23d a report was filed granting the prayer thereof, and an order made authorizing said company to acquire the utility property of Fox & Putnam and to furnish electric current to the public of Woodstock and Thornton, also to the public of Campton not already supplied by other companies, and to construct and maintain pole lines and other necessary apparatus in said towns. A motion for rehearing by Parker-Young Co. and E. B. Conant, a resident of North Woodstock and a user of electricity, was filed November 26 and denied December 6, 1927.

The two proceedings involving the same issue, namely, which of the two companies the public good required should be allowed to purchase the utility property of Fox & Putnam and conduct the utility business prayed for in the respective petitions, the counsel for all said parties agreed that the two cases, though separately tried, should be treated as one on appeal.

Fox & Putnam conduct the utility business as a side line, purchasing current of Parker-Young Co. and maintaining its wires upon poles set and owned principally by the town. The service is admittedly poor. It appears to be conceded that either of the prospective purchasers is capable of rendering superior and adequate service. At the hearings there developed, however, a strong opposition to the Parker-Young Co. and a like partiality for the Baker River Co. All the selectmen of Woodstock appeared in opposition to the petition of the former, and would not promise to grant pole locations, or to permit the company to continue its wires on the town poles if it acquired the property, basing their attitude on a vote of the town granting pole line rights to the Baker River Co. The selectmen and other prominent citizens of Woodstock appeared in support of the latter's petition, and the selectmen of all three towns expressed a willingness to grant the necessary pole locations. Petitions, counter petitions, and remonstrances were filed disclosing a somewhat divided sentiment, with a preponderance, however, in favor of the Baker River Co.

While much evidence was addressed to the comparative service promised, the rates to be charged, and other considerations material to the ultimate issue of the public good, the final conclusion of the commission upon that issue was in each case expressly based upon the attitude of the public, but more particularly upon that of the selectmen as to pole locations.

Errors of both law and fact are claimed in each appeal. The evidence, findings, rulings, and orders, so far as deemed material, appear in the opinion.

Demond, Woodworth, Sulloway & Rogers and Jonathan Piper, all of Concord, for appellants.

Murchie & Murchie and Alexander Murchie, all of Concord, for Baker River Co.

SNOW, J. The issue presented at the hearing before the commission on the petition of Parker-Young Co. and Fox & Putnam was whether the public good would be promoted by permitting the former to take over by purchase the utility business and property of the latter and to carry on the manufacture and distribution of electrical energy in the town of Woodstock. The commission stated its conclusion as follows: "On account of the attitude taken by the public in North Woodstock and the selectmen of the town, we feel that the petition must be denied. If it were granted, it would be ineffective unless the selectmen would grant the new owners a location for its poles in the highways. The commission has no jurisdiction over granting these locations, that matter being entirely in the hands of the selectmen of the town. Without such locations, the company could not render service, and, therefore, an order from this commission permitting it to do so would be futile." It is apparent that, in the denial of the petition, controlling importance was given to the announced refusal of the selectmen of Woodstock to grant Parker-Young Co. pole locations. In the commission's re port upon the later petition of Baker River Co. for like authority, the expressed willingness of the selectmen of the three towns there involved to grant that company pole locations is recited by the commission as a ground for its favorable finding, showing that like force was given to the supposed power of the selectmen to grant or withhold licenses at their pleasure. That the controlling weight accorded to the attitude of the selectmen was common to the consideration of both petitions is further shown by the fact that the coin-mission's conclusion was expressly attributed to a rule of procedure, namely: "At the hearing on any such petition, the petitioner will be required to file certified copies of records showing that the necessary license or licenses, easement or easements to enable the petitioner to engage in business in the town or city in question have been granted." Rules of Procedure Public Service Commission 15. The citation of this rule as the basis of its findings, as well as repeated remarks of the chairman during the course of the hearings, shows that the commission regarded a preliminary assurance of the selectmen of their favorable action as a sine qua non to a finding for a petitioner.

Unless selectmen of towns have power, regardless of the order of the commission, to grant or to refuse licenses for pole locations, and are bound by their advanced pledges to issue or withhold the same, there was error in the ruling which gave controlling weight to the promises and refusals of these officers. That the selectmen have no such power, and are not so bound, cannot be open to doubt.

Such powers as the selectmen have with respect to public utilities rest on P. L. c. 97. By this statute the erection and maintenance of poles and structures in highways for the support of electric and other wires are forbidden, except upon a license from the selectmen of the town through which the proposed line is to pass locating the route thereof and fixing their size, location, etc. The selectmen are given powers to limit the duration of such license, to change the terms and conditions thereof, and to revoke the license whenever the public good requires. This statute, so far as here material, is a re-enactment of P. S. c. 81, §§ 1, 2 (1891), which preceded the establishment of the public service commission. Laws 1911, c. 164. The provisions of P. S. c. 81, were designed to regulate and control the use made of highways for utility purposes, so that such use may not unduly interfere with the other public uses to which the highways are dedicated. Trust Co. v. Electric Co., 71 N. H. 192, 200, 51 A. 600. It confers no express power upon the selectmen to determine who may and who may not occupy the highway with poles and wires, nor to choose between two utilities competing for the right. Any such authority which selectmen may have originally possessed under the statute arose by implication, as an incident to the general control of highway uses, and has been superseded by the express provisions of the Public Service Commission Act. Laws 1911, c. 164. By this act the Legislature undertook by comprehensive provisions to institute a new system for the establishment and control of public utilities in the state. It created the public service commission as a state tribunal imposing upon it important judicial duties and endowing it with large administrative and supervisory powers. Section 13(a) of the act provided as follows: "No public utility shall commence within this state the...