Tri-County Elec. Ass'n, Inc. v. City of Gillette

CourtUnited States State Supreme Court of Wyoming
Citation525 P.2d 3
Docket NumberNo. 4329,TRI-COUNTY,4329
PartiesELECTRIC ASSOCIATION, INC., Appellant (Respondent below), v. The CITY OF GILLETTE, Appellee (Petitioner below).
Decision Date29 July 1974

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525 P.2d 3
TRI-COUNTY ELECTRIC ASSOCIATION, INC., Appellant (Respondent below),
The CITY OF GILLETTE, Appellee (Petitioner below).
No. 4329.
Supreme Court of Wyoming.
July 29, 1974.

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Cecil K. Hughes, Sundance, for appellant.

Arthur Kline, Cheyenne, and William G. Watt, Gillette, for appellee.

Carl L. Lathrop and David D. Uchner of Lathrop, Uchner & Mullikin, Cheyenne, for amicus curiae, Wyoming State Rural Electric Assn.

Thomas S. Smith of Smith, Stanfield & Mendicino, Laramie, for amicus curiae, Wyoming Assn. of Municipalities.

Clarence A. Brimmer, Atty. Gen., and Richard J. Moen, Special Asst. Atty. Gen., Cheyenne, for amicus curiae, Public Service Comm. of Wyoming.


Mr. Justice GUTHRIE delivered the opinion of the court.

This is an appeal from a decision of the district court reversing an order of the Wyoming Public Service Commission. For brevity Tri-County Electric Association, Inc., will be described as Tri-County; the City of Gillette will be described as the city; and the Wyoming Public Service Commission will be described as the commission.

On May 5, 1960, the city and Tri-County entered into an agreement which provided for the purchase of certain facilities and equipment which were exchanged by the parties in areas where they were to continue service and it was generally agreed that the city should service those areas which 'are by nature a part of the municipality' and that Tri-County should service the rural area surrounding the city service area.

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The parties at that time agreed as to the mutual service areas and the agreement further provided it was subject to the approval and authorization of the commission.

On August 15, 1960, the commission upon application by the city approved the agreement and issued a certificate of public convenience and necessity to Tri-County, covering the area of the so-called Pioneer Addition, which is the area in controversy here.

On July 17, 1969, the city passed an ordinance extending its limits to include Pioneer Addition on the northwest side of the city. On June 9, 1970, the city passed an ordinance defining the boundaries of the city which encompassed all prior annexations. On July 10, 1970, the city passed an ordinance forbidding any person or corporation to construct any electric lines within the limits of the City of Gillette as it then existed or might hereinafter be enlarged. There was at that time no electrict service being provided by either of these parties in the Pioneer Addition. On June 16, 1970, the city declined to grant Tri-County a franchise or easement in this area on the ground the city had preempted the field of electrical service. Thereafter Tri-County erected electric lines to serve people residing in Pioneer Addition, which is within the extended corporate limits of the city, and commenced service to them. This service was supplied upon demand and request of those residents of Pioneer Addition. 1 The record does suggest application had been made to the city by at least one applicant and it failed to supply such service.

On July 23 the city filed with the commission an application to amend its certificate of public convenience and necessity in order to supply electrical service to inhabitants of Pioneer Addition and further requested that this area be deleted from the certificated territories of Tri-County. After the hearing thereon the commission entered the following order:


'1. The City is an operating public utility as defined by Section 37-1, Wyoming Statutes, insofar as concerns the electric service area certificated to it by us outside its corporate limits; and its electric utility operations inside its corporate limits are exempted thereunder from our jurisdiction.

'2. Tri County is an operating public utility under Section 37-1 whose certificated area includes the area certificated to it by us in and around the City.

'3. The areas more recently annexed by the City and which are also within Tri County's certificated service area from which it requests we unilaterally order Tri County to withdraw are:

'(a) the area comprising the northeastern part of the City in which there is no electric service at present.

'(b) the Pioneer addition in the northwest corner of the City served by Tri County.

'(c) the area south of the City adjacent to U. S. Highway 90 in which the City has extended service.

'(d) the City-owned tract of land located approximately one and one-half miles southeast of the City wherein the City proposes to construct its sewage disposal plant.

'4. The City's service area outside the city limits remaining under our jurisdiction is not in the evidence of this case.

'5. The facts of this case are different in important respects from those of any cases concerning territorial controversies decided by the commission and those appealed to the Wyoming Supreme Court,

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as those cases involved jurisdictional service where the commission could balance the effect on each involved utility, where necessary by exchange of customers, territory, and facilities.

'6. In this case we do not have the utility area, service, and rate control necessary to make certificated area adjustments in the public interest pursuant to existing law, the court decisions and our established policies.

'7. Since Tri County is providing adequate service under reasonable rates and its users in the controverted areas request continuation of its service, there was no utility basis presented supporting requiring it to discontinue service therein.

'8. The parties should work now and in the future to avoid duplicating electric service which results in haphazard, unstable, wasteful and expensive service, the burdens and detriments of which must be borne by the public.

'9. The proposed extension of service by the City to its proposed sewage disposal plant is exempted from our regulation under the provisions of Section 37-1.


'1. We have jurisdiction under the evidence of this case over the utility operations and certificated area of Tri County.

'2. At the time of our order in Docket No. 9390 dated August 15, 1960, we had jurisdiction over both Tri County and the City; and the certificates granted therein are in effect.

'3. Wyoming law provides that a utility serve adequately, safely and efficiently.

'4. A utility cannot be required by us to discontinue its utility service unless there is a showing its service is inadequate and deficient.

'5. Wyoming law requires us to ascertain that the executed agreements to which a utility is a party meet the public interest.

'6. We do not have jurisdiction over furnishing of service by a person to himself as the same is exempted by subsection (h) of Section 37-1.

'7. We do not have jurisdiction over municipally owned and operated utilities within the city limits.

'8. All required notices have been given and public hearing held.'

The city then filed its petition for review and injunctive relief and the matter was heard in the district court upon the record, and the following judgment was entered:

'This matter having come on for hearing on July 30, 1973, in Gillette, Wyoming, upon the Petition for Review and for Injunctive Relief filed herein by the petitioner, the petitioner appearing by William G. Watt and Arthur Kline, its attorneys and the respondent Wyoming Public Service Commission appearing by its attorney, Richard J. Moen, and the respondent Tri-County Electrict Association appearing by its attorney, Cecil Hughes, and the Court, having heard the argument of counsel, having considered the briefs filed by the parties, having reviewed the record of proceedings before the Wyoming Public Service Commission, and being fully advised in the premises, does find generally for the petitioner.

'The Court does further find that the respondent, Tri-County Electric Association, has no right to supply electric service to persons residing within the city limits of the City of Gillette without a franchise from the City and has no right to use the streets and alleys of the City without a franchise, easement or other authority from the City, and that an order requiring the respondent Tri-County Electric Association to cease and desist from supplying such electric service should be entered herein.

'The Court does further find that the Commission's Memorandum Opinion and Order is not in conformity with law and that the matter should be remanded to

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the Commission for such proceedings as...

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