State v. Tucson Gas, Elec. Light & Power Co.

Decision Date18 February 1914
Docket NumberCriminal 343
PartiesSTATE, Appellant, v. TUCSON GAS, ELECTRIC LIGHT AND POWER COMPANY, a Corporation, Appellee
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Pima. W. F. Cooper, Judge. Affirmed.

The facts are stated in the opinion.

Mr. G P. Bullard, Attorney General, and Mr. Geo. O. Hilzinger County Attorney, for Appellant.

Mr. S L. Kingan and Mr. John M. Olin, for Appellee.



The appellee is charged by the information with unlawfully charging and collecting from Alfredo Durazo one dollar for illuminating gas for lighting purposes, whereas the gas actually furnished him was of the value of forty cents. To the information the appellee filed a demurrer, on the ground that it failed to state facts sufficient to constitute a crime or offense under the laws of Arizona, or at all. The demurrer was sustained, and the state prosecutes this appeal on questions of law only.

The statute law applicable to the case is found in chapter 52 Laws First Special Session of Arizona of 1912, and section 7 thereof, which reads: "Sec. 7. It shall be unlawful for any person, firm, or corporation, to sell and deliver, charge and collect for, or pay for, water, electrical energy, or illuminating gas, used or to be used for lighting, heating, or other commercial or domestic purposes, except by meter measurement, if the consumer shall request that the same be sold by meter measurement; or to charge and collect for, or pay for, a greater amount of such water, electrical energy, or illuminating gas, than actually furnished during the period for which the charge was made." The question is, May a public service corporation establish and collect a minimum rate, notwithstanding this legislative expression to the contrary? It is the contention of appellee that this legislative act is repugnant to the Constitution of Arizona, and void in so far as it attempts to fix rates to be charged for the products named.

The provisions of the Constitution relied on as forbidding this piece of legislation are found in article 15 thereof.

Section 1 creates the Corporation Commission and provides for the election of its members and their tenure of office.

Public service corporations are defined by section 2, which reads as follows: "All corporations other than municipal engaged in carrying persons or property for hire; or in furnishing gas, oil, or electricity for light, fuel, or power; or in furnishing water for irrigation, fire protection, or other public purposes; or in furnishing, for profit, hot or cold air or steam for heating or cooling purposes; or in transmitting messages or furnishing public telegraph or telephone service, and all corporations other than municipal, operating as common carriers, shall be deemed public service corporations."

Section 3 defines the powers of the Corporation Commission, and reads: "The Corporation Commission shall have full power to, and shall, prescribe just and reasonable classifications to be used, and just and reasonable rates and charges to be made and collected, by public service corporations within the state for service rendered therein, and make reasonable rules, regulations, and orders, by which such corporations shall be governed in the transaction of business within the state, and may prescribe the forms of contracts and the systems of keeping accounts to be used by such corporations in transacting such business, and make and enforce reasonable rules, regulations, and orders for the convenience, comfort, and safety, and the preservation of the health, of the employees and patrons of such corporations; provided, that incorporated cities and towns may be authorized by law to exercise supervision over public service corporations doing business therein, including the regulation of rates and charges to be made and collected by such corporations; provided further, that classifications, rates, charges, rules, regulations, orders, and forms or systems prescribed or made by said Corporation Commission, may from time to time be amended or repealed by such commission."

Section 6 provides that: "The law-making power may enlarge the powers and extend the duties of the Corporation Commission, and may prescribe rules and regulations to govern proceedings instituted by and before it; but, until such rules and regulations are provided by law, the commission may make rules and regulations to govern proceedings."

Considering section 3, it will be noticed that the Corporation Commission is given full power to prescribe just and reasonable classifications and just and reasonable rates and charges to be made and collected by public service corporations. "Full power," taken alone as the measure of the commission's jurisdiction, means a complete and perfect or plenary power over the subject matters named, but it does not necessarily mean exclusive power. The "full power" granted the commission extends to the fixing of classifications and rates of all public utilities operating in the state, whether in incorporated cities or not. In the absence of legislation as contemplated by the proviso in section 3, the "full power" is a general grant or investiture of plenary power in the commission to prescribe classifications and fix rates and charges for all public service corporations in the state. By the proviso this full power and jurisdiction of the Corporation Commission to prescribe classifications and fix rates and charges in incorporated cities and towns may be transferred to such municipal corporations, if "authorized by law." That is to say, the legislature may, in one case, exercise its power to restrict or limit the "full power" and jurisdiction of the commission to prescribe classifications and fix rates and charges of public service corporations, and that case is particularly and definitely pointed out. The Constitution itself having thus named the one instance that the commission may be shorn of its "full power" to act on rates and charges and classifications, and reposed the authority in the legislature to divest that power in the one instance, the inevitable conclusion is that the legislature could interfere with, or limit the commission's powers in no other instance.

"The expression of one thing is the exclusion of another." "Broom, in his Legal Maxims, says that no maxim of the law is of more general and uniform application; and it is never more applicable than in the construction and interpretation of statutes. Whenever a statute limits a thing to be done in a particular form, it necessarily includes in itself a negative, viz., that the thing shall not be done otherwise." 19 Cyc. 23.

We think this maxim has a special application here. If the Constitution had intended that the legislative department should have unrestricted power over the corporation commission, it has failed to so indicate, but, on the contrary, has definitely limited and restricted its power to take from the commission the prescribing of classifications and fixing rates and charges in incorporated cities and towns only.

It was said by Justice FIELD, in Georgia Banking Co. v. Smith, 128 U.S. 174, 181, 32 L.Ed. 37, 9 S.Ct. 47, 49, that "the general purpose of a proviso, as is well known, is to except the clause covered by it from the general provisions of a statute, or from some provisions of it, or to qualify the operation of the statute in some particular." The power granted to the corporation commission by section 3 of the Constitution to supervise, regulate, and control public service corporations extends to and covers all such corporations doing business in the state. However, this power may be given over to incorporated cities and towns by proper legislative action, either by the legislature or the people. If the law-making power of the state can transfer this power of regulation and control from the corporation commission to cities and towns, only by virtue of the direct grant of authority to do so, as contained in the proviso, it would seem to follow that the legislature is powerless to prescribe classifications, rates, charges, rules, regulations and orders by which public service corporations shall be governed. And if the proviso is not a restriction upon the law-making body, why was it inserted in the Constitution? If the law-making body of the state has the power of supervision, regulation and control, including the fixing of rates and charges, over public utilities, as is contended by appellant, then the proviso serves no purpose whatever. It is clear without the proviso the grant to the corporation commission is full and complete power to act in the premises, and the force and effect of the proviso, when vitalized by legislation, is to transfer the power to incorporated cities and towns to regulate, supervise and control public service corporations doing business therein, including the fixing of rates and charges to be made and collected. We think the proviso strengthens the general grant of power to the corporation commission and, in effect, makes its authority exclusive and supreme, except in the matter of home rule to cities and towns.

To this point we have directed our discussion to the first proviso of section 3, supra. The second proviso of that section is "that classifications, rates, rules, regulations orders and forms or systems prescribed or made by said corporation commission may from time to time be amended or repealed by such commission." The commission shall not only have the full power to act in the premises, but, having acted, it only may amend and repeal its action. As is hereafter shown, we think this must be true, or else there would exist no paramount authority over the matter of regulating and supervising...

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