State ex rel. Public Service Commission v. Montana-Dakota Utilities Co.

• Decision Date: 31 March 1958
• Docket Number: No. 7741,MONTANA-DAKOTA,7741
• Citation: 89 N.W.2d 94
• Parties: STATE of North Dakota, ex rel. PUBLIC SERVICE COMMISSION, Plaintiff and Respondent, v.UTILITIES CO., a foreign corporation, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 94

89 N.W.2d 94

24 P.U.R.3d 75

STATE of North Dakota, ex rel. PUBLIC SERVICE COMMISSION, Plaintiff and Respondent, v. MONTANA-DAKOTA UTILITIES CO., a foreign corporation,

Defendant and Appellant.

No. 7741.

Supreme Court of North Dakota.

March 31, 1958.

Syllabus by the Court

1. Where a schedule of rates is filed by a public utility with the Public Service Commission pursuant to the provisions of Section 49-0505, NDRC 1943 the Commission has the discretion of ordering a hearing upon due notice or of permitting the schedule to become effective at the end of 30 days without action on the part of the Commission. The Commission may also for good cause shown allow the schedule of rates to become effective within less than 30 days.

2. In determining the procedure to be followed by the Public Service Commission when a schedule of rates has been filed with it pursuant to the provisions of Section 49-0505, NDRC 1943 that section must be considered in connection with Section 49-0506, NDRC 1943.

3. Where an enactment treats of a phase of a prior and more general law with which it conflicts the subsequent law governs and the former general law is repealed to the extent of the conflict.

4. The Public Service Commission is a constitutional agency of the state with powers prescribed by legislative enactments which must be exercised in accordance with the statutes bestowing them.

5. A schedule of rates of a public utility noticed and filed pursuant to the provisions of Sections 49-0505 and 49-0506, NDRC 1943 becomes effective on the expiration of 30 days from the time of filing or such lesser time as the Commission may grant unless a hearing thereon is ordered in which event the proposed rate is suspended pending the hearing and decision of the Commission with a limit of 120 days on that suspension subject to the power of the Commission to extend the suspension for as long as an additional 6 months.

6. The power to suspend proposed rates of a public utility under the provisions of Section 49-0506, NDRC 1943 has been entrusted to the Public Service Commission only, to be exercised in the manner therein provided, and cannot be exercised by the courts.

Cox, Pearce & Engebretson, Bismarck, Earl H. A. Isensee, Minneapolis, of counsel, for defendant and appellant.

Leslie R. Burgum, Atty. Gen., and Gerald G. Glaser, Commerce Counsel, Bismarck, for plaintiff and respondent.

Richard P. Gallagher, Mandan, amicus curiae.

MORRIS, Judge.

The defendant and appellant, Montana-Dakota Utilities Co., is a corporation engaged in the operation of public utilities in the state of North Dakota and as such is subject to regulation by the Public Service Commission of the state pursuant to statutory authority and direction. This controversy involves rates charged or to be charged by the appellant for the sale of electric energy.

In 1948 the Public Service Commission approved a schedule of rates to be charged by the appellant. On or about April 17, 1957 the appellant filed with the Public Service Commission a new and increased schedule of rates accompanied by a notice that they were to be effective thirty days after the receipt thereof by the Commission which included the statement that:

'This application is submitted in accordance with the provisions of the North Dakota Revised Code of 1943, Chapters 49-05 and 49-06.'

On May 7, 1957 the appellant filed an amendment of the schedule above described. On May 13, 1957 the Commission adopted by unanimous action a motion:

'that the revised schedule of electric rates for various classes of service as filed by the Montana-Dakota Utilities Company and which has been docketed as Case No. 5576 be suspended until further order of the Commission.'

On the following day the secretary of the Commission wrote the appellant as follows:

'This is to advise you that on May 13, 1957, the Commission suspended until further order the application of Montana-Dakota Utilities Company for an increase in electric rates covering various classes of electric service in North Dakota.

'The matter has been docketed as Case No. 5576. You will be promptly informed of any further action taken by the Commission.'

Under date of June 4, 1957, which was within thirty days after the filing of the amended schedule, the Commission gave notice to the appellant that an initial public hearing would be held with respect to the reasonableness of the proposed rate schedules on July 1, 1957. On September 10, 1957 the Commission gave notice that the hearing would be resumed. The resumed hearing was completed October 9, 1957. On or about November 2, 1957 the appellant notified the Commission and its consumers by letter that the new rate schedules went into effect on October 5, 1957 and that all service rendered after October 4, 1957 would be billed by the company at the new rates.

On November 6, 1957 the Commission instituted this proceeding in the District Court of Burleigh County reciting in substance the facts above set forth and alleging that a hearing had been held by the Commission on the appellant's application and new rate schedule and that the Commission was in the process of reviewing the evidence preparatory to rendering a decision. It was further alleged that on May 13, 1957 the new rate schedule was suspended by the Commission and that the suspension was never modified, revoked or altered. It was also alleged that the rate schedule approved by the Commission in 1948 is still in full force and effect but that unless the Montana-Dakota Utilities Company is restrained by the court it will collect rates from its customers pursuant to its letter of November 2, 1957 and that such rates are in excess of those set out in the schedules of 1948 and are unlawful, unauthorized and improper. The Commission then asked the court to enjoin the appellant from instituting and making effective its proposed new rates pending the further order of the Commission.

The appellant answered and alleged the filing of its new rate schedules and the motion of the Commission of May 13, 1957 purporting to suspend the effective date of the new schedules until the further order of the Commission. It also alleged that a hearing was held by the Commission on its own motion to inquire into the reasonableness and fairness of the new rates, which hearing was held on July 1, 1957 and resumed on October 8 and 9, 1957, but that no order had been issued by the Commission up to the date of the answer which was November 27, 1957. Appellant further alleged:

'That the resolution of the Public Service Commission suspending the effective date of said new rate schedules could not, under the law, be effective for more than 120 days after the initial 30 day notice period, and that no other resolution or order of the Commission suspending the effective date of said rate schedules was made, except that of May 13, 1957, and that said new rates and schedules of charges became effective and became the legal rates and charges for the company on the 5th day of October, 1957.'

This paragraph of the answer sets forth appellant's position with respect to the main issue of this controversy.

After a hearing had in the District Court, judgment was entered enjoining the appellant from charging and collecting the proposed rates for 90 days from November 29, 1957 and directing the Public Service Commission to take appropriate action during that period.

The Montana-Dakota Utilities Co. appealed from that judgment. At the time the case was argued in this court on February 5, 1958 counsel were agreed that the Public Service Commission had decided the matter and had entered its order accordingly. The primary question is whether it was lawful for the appellant to charge and collect rates pursuant to the new schedule after October 4, 1957. The case is here for trial de novo on demand of the appellant.

This controversy involves the interpretation and application of two statutes. The first is Section 49-0505, NDRC 1943 which provides:

'No change shall be made by any public utility in any tariffs, rates, joint rates, fares, tolls, schedules, classifications, or service which have been filed and published by any public utility, except after thirty days' notice to the commission. Such notice shall state plainly the changes proposed. The commission for a good cause shown, may allow changes upon less than the notice herein specified, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions.'

The appellant contends that under this section a public utility may file a new schedule of rates regardless of the origin or source of the old ones and that the new schedule when accompanied by proper notice to the commission will become effective thirty days after filing unless suspended pursuant to the procedure provided by the succeeding Section 49-0506, NDRC 1943 without reference to whether rates to be charged are increased or decreased by the new schedules.

The Commission points to Section 49-0511, NDRC 1943 which provides that:

'Every order entered by the commission shall continue in force until the expiration of the time, if any, named by the commission in such order or until revoked or modified by the commission, unless the same is suspended, modified, or revoked by order or decree of a court of competent jurisdiction.'

It is argued that in this case a schedule of rates was approved by the Commission December 8, 1948 which can be changed only by another order of the Commission or by the decree of a court of competent jurisdiction in a proper case. It is particularly urged that Section 49-0505, NDRC 1943 is not applicable where the rates filed exceed those named in an outstanding unrevoked order of the Commission.

The source of the three sections above referred to is Chapter 192, Session Laws N.D.1919 which was our first comprehensive regulatory statute pertaining to rates, charges and services of public utilities. The identical...