Rural Electric Co. v. State Board of Equalization

• Decision Date: 05 January 1942
• Docket Number: 2210
• Citation: 57 Wyo. 451,120 P.2d 741
• Parties: RURAL ELECTRIC CO. v. STATE BOARD OF EQUALIZATION ET AL
• Court: Wyoming Supreme Court

120 P.2d 741

57 Wyo. 451

RURAL ELECTRIC CO. v. STATE BOARD OF EQUALIZATION ET AL

No. 2210

Supreme Court of Wyoming

January 5, 1942

Rehearing Denied 57 Wyo. 451 at 484.

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Action by the Rural Electric Company, on behalf of itself and all others similarly situated, against the State Board of Equalization of the State of Wyoming, and Will M. Lynn, W. J Dalton, and M. H. Leitner, as the present members of the State Board of Equalization of the State of Wyoming, for a declaratory judgment to the effect that the plaintiff and those similarly situated were not subject to excise tax imposed by the sales tax law on public utilities, gas electric, and heat companies. From a judgment in favor of the plaintiff, the defendants appeal. Rehearing denied on January 5, 1942, see 122 P.2d 189.

Reversed, with directions.

For the appellants, there was a brief by Ewing T. Kerr, Attorney General; H. I. Bacheller, Deputy Attorney General; and Arthur Kline, Assistant Attorney General, and oral argument by Mr. Kline.

This action was brought by respondent for a declaratory judgment to determine its liability for the payment of a sales tax under Section 4 of Chapter 102, Laws of 1937. Plaintiff contends that the only question before the court is whether or not it is a public utility. Appellants contend that respondent is a public utility and liable for the payment of a sales tax. Certain facts pertinent to the controversy are set forth in a stipulation relating to the situation with respect to other rural electric companies. Sec. 94-101, W. R. S. defines the term "public utility." Section 94-145, R. S. 1931, as amended in 1937, is also of assistance in determining whether respondent is a public utility. Another statute indicating legislative intent to include organizations such as respondent is Section 94-101, R. S. 1931. This statute exempted farmers' mutual telephone associations, but by implication included telephone associations which charged for the service furnished members. Expressio unius est exclusio alterius. State Board of Equalization v. Stanolind Oil & Gas Co., 54 Wyo. 521. The testimony shows that respondent's monthly income is $ 2300.00. The legislature did not intend to exempt a company charging such tolls, even though it was mutually owned and operated by its members. The record shows that respondent has taken over the consumers and territory formerly supplied by the town of Pine Bluffs, a public utility, without securing an assignment of the certificate of public convenience and necessity issued to the town of Pine Bluffs. Respondent became a public utility. Little Rock Water Company v. Water Works Commission, 136 S.W.2d 194. Our contention is expressed in the case of Jersey Central Power & Light Co. v. Tri-County Rural Electric Company, Inc. (decided February 28, 1941) 37 P. U. R. ___. Respondent receives all of its funds from the Rural Electrification Administration, which gives it the character of a public utility. Re Harrison Association, Inc., 24 P. U. R. (N. S.) 7. The cases cited by respondent in the District Court, of Garkane Power Company v. Public Service Commission, 100 P.2d 571 and Inland Empire Rural Electrification, Inc. v. Dept. of Public Service, 92 P.2d 258 are clearly distinguishable from the case at bar. The statutes of Utah and Washington differ from the Wyoming statute. Barnes v. Lehi City, 279 P. 878; Logan City v. Public Utilities Commission, 271 P. 961. The statutes of those states do not include municipally owned utilities. The question of whether or not a person or corporation is in fact a public utility is one of fact, and each case must rest upon its own peculiar set of facts. Weaver v. Public Service Commission, 40 Wyo. 462; State Board of Equalization v. Stanolind Oil and Gas Company, 54 Wyo. 521. The Pipe Line cases, 234 U.S. 548, 58 L.Ed. 1459, have a factual situation almost identical with the present case. Davis v. People, 247 P. 801. Respondent must collect sales tax since it is an "electric corporation." Section 4, Chapter 102, Session Laws 1937. While Chapter 94, Revised Statutes of Wyoming 1931, does not define electric corporations, it is presumed that the legislature intended to place some meaning upon the term as used in said chapter. 56 C. J. 995. Statutes must be liberally construed to carry out the intent of the lawmaker. Carey v. United States, 22 F.2d 298; 59 C. J. 1133. The court exceeded its jurisdiction in rendering an injunction against appellants. Section 21, Chapter 102, Laws of 1937. There is no evidence to support the judgment as to other rural electric companies than plaintiff. It is respectfully submitted that respondent is obligated to collect a sales tax from its members, for the reason that it is a public utility.

For the respondents, there was a brief by Walter Q. Phelan of Cheyenne and J. M. Roushar of Torrington, and oral argument by Mr. Phelan.

Respondent's petition is for a declaratory judgment, with reference to its liability for the payment of a sales tax. It is a cooperative corporation, with objects and purposes as stated in its corporate certificate, the relation of its members being defined by its By-laws. We believe that Sub-division (b) of Section 2, Sections 4 and 18 of the Selective Sales Tax Act of 1937, as amended, are pertinent to the issues involved in this case. Sec. 94-101, R. S. 1931, also relates to public utilities. The State Board of Equalization has ruled that respondent and other rural electrification companies are subject to a sales tax, while respondent contends to the contrary. The court below found in favor of respondent. We note some inconsistencies in appellants' brief. It is first contended by appellant that the facts stipulated with reference to other co-operatives prove the liability of respondent, and then at page 24, it is contended that said other co-operatives are not similarly situated. It was admitted by the Chairman of the appellant Board that said Board had not attempted to exercise jurisdiction over rural electric co-operatives in the way of fixing their rates. In spite of this testimony, the Attorney General argues that all of such co-operative corporations are under the supervision of appellant board. In recent cases, the courts have held electric cooperatives to be free from commission jurisdiction. Alabama Power Co. Membership Corp. (Ala.) 174 So. 866; Carolina Power & Light Co. v. Membership Corp. (N. C.) 192 S.E. 105; Garkane Power Co. v. Public Ser. Comm. (Utah) 100 P.2d 571; Inland Empire Rural E. v. Public Service (Wash.) 92 P.2d 258. Appellants also contend that respondent should be under the supervision of appellant Board, because municipally owned plants are so controlled. The answer to this is that the statute provides for such control, but does not include respondent. State v. Southern Tel. Co. (Nebr.) 163 N.W. 562; State ex rel. Danciger & Co. v. Public Service Comm. (Mo.) 205 S.W. 36. Section 94-101, R. S. was considered by this court in the case of State Board v. Stanolind Oil and Gas Company (Wyo.) 94 P.2d 147, where it was held that sales tax could be collected only on sums paid to public utilities. The use of the highways for the erection of posts does not convert a cooperative into a public utility. State Comm. v. Bethany Ass'n. (Ill.) 110 N.E. 334. Nor does the fact that it constitutes a monopoly make it a public utility. State v. Southern Tel. (Nebr.) 163 N.W. 562. The number of consumers does not determine whether it is a public utility. Dairymen's Co-op Sales Ass'n. v. Public Service Comm. (Penn.) 177 A. 770; Tyson & Bros. v. Banton, 273 U.S. 418; Inland Electrification, Inc. v. Department of Pub. Service (Wash.) 92 P.2d 258. It will be noted that the case of Power Company v. Public Service Commission, 100 P.2d 571 is governed by a Utah statute. It is respectfully submitted that the case of State Board v. Stanolind Company, supra, fully supports respondent's contentions.

As Amici Curiae, there was a brief by E. J. Goppert of Cody and George F. Guy of Cheyenne, and oral argument by Mr. Guy.

The court has requested the appearance of Tensleep Electric Light and Power Company here as Amicus Curiae, and it appears as such by counsel. We believe that respondent is a public utility under the laws of Wyoming (Sec. 94-101, W. R. S. 1931) and that it is under the jurisdiction of The Public Service Commission of Wyoming. Section 95-111, W. R. S. 1931. We believe the point is supported by the Pipe Line Cases reported in 234 U.S. 548, also by the case of Davis v. People ex rel. Public Utilities Commission, 247 P. 801 and U. S. v. State of California, 80 L.Ed. 567. Respondent's counsel have cited the case of Garkane Power Co. Inc. v. Public Service Commission, 100 P.2d 571 in support of their contention, that Utah associations are not subject to control by the Public Service Commission of that state. We believe that case differs on the facts from the case at bar as also does the case of Inland Empire Rural Electrification, Inc. v. Dept. of Public Service, 92 P.2d 258. Respondent, having undertaken to serve the public in a territory, is a public utility in fact. Chambers v. Spruce Company, 81 W.Va. 714, 51 C. J. 5. Respondent was organized as a cooperative company under Section 28-101, R. S. It was organized to furnish power to anyone who will become a member and has been operated on that principle and not in aid of the industrial or productive interests of the state. It is therefore a public utility. 19 C. J. S. 445, 446. For the reason here advanced, it is submitted that the judgment of the District Court of Laramie County in this matter is erroneous and should be reversed.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME,...