Trico Elec. Co-op., Inc., Application of

• Decision Date: 19 December 1962
• Docket Number: No. 7698,7698
• Parties: , 47 P.U.R.3d 372 Application of TRICO ELECTRIC COOPERATIVE, INC., a corporation, and Corona De Tucson, Inc., a corporation, for an Order Approving a Proposed Contract Between Corona De Tucson, Inc., and Trico Electric Cooperative, Inc., for the Distribution of Electrical Energy in Portions of Township 17 South, Range 15 East and Township 17 South, Range 16 East, in Pima County, State of Arizona. CORONA DE TUCSON, INC., a corporation, and Trico Electric Cooperative, Inc., a corporation, Petitioners, v. George 'Duke' SENNER, E. T. 'Eddie' Williams, Jr., and Jack Buzard, in Their Official Capacity Only as Members of and Constituting the Arizona Corporation Commission, Respondents.
• Court: Arizona Supreme Court

Page 309

377 P.2d 309

92 Ariz. 373, 47 P.U.R.3d 372

Application of TRICO ELECTRIC COOPERATIVE, INC., a corporation, and Corona De Tucson, Inc., a corporation, for an Order Approving a Proposed Contract Between Corona De Tucson, Inc., and Trico Electric Cooperative, Inc., for the Distribution of Electrical Energy in Portions of Township 17 South, Range 15 East and Township 17 South, Range 16 East, in Pima County, State of Arizona.

CORONA DE TUCSON, INC., a corporation, and Trico Electric Cooperative, Inc., a corporation, Petitioners, v. George 'Duke' SENNER, E. T. 'Eddie' Williams, Jr., and Jack Buzard, in Their Official Capacity Only as Members of and Constituting the Arizona Corporation Commission, Respondents.

No. 7698.

Supreme Court of Arizona, In Banc.

Dec. 19, 1962.

Anderson & Welker, and Dudley S. Welker, Safford, for amici curiae Graham County Electric Cooperative, Inc., and Duncan Valley Electric Cooperative, Inc.

Hall, Jones, Hannah & Trachta, and Russell E. Jones, Tucson, for amicus curiae Mohave Electric Cooperative, Inc.

Robert Pickrell, Atty. Gen., Jos. S. Jenckes, V., Frank Sagarino, Asst. Atty. Gen., for Arizona Corporation Commission, respondents.

Wolfe, Greer & Knez, Tucson, for petitioner Trico Electric Cooperative, Inc.

Thomas B. Hargis, Jr., Tucson, for petitioner Corona de Tucson, Inc.

Jennings, Strouss, Salmon & Trask, and Thomas J. Trimble, and Clarence J. Duncan, Phoenix, and Darnell, Holesapple, McFall & Spaid, and A. Y. Holesapple, and Clifford R. McFall, Tucson, for intervenor.

YALE McFATE, Superior Court Judge.

This proceeding was commenced on August 6, 1962, by the filing in this Court of a petition for an alternative writ of mandamus, directed to the respondents as members of and constituting the Arizona Corporation Commission, requiring them to approve or show cause why they should not approve, a certain contract between Corona de Tucson, Inc. (herein called Corona), and Trico Electric Cooperative, Inc. (herein called Trico), for the furnishing of electrical energy.

Tucson Gas, Electric Light & Power Company (herein called Tucson Gas) was permitted to intervene, and after hearing, we granted the alternative writ.

Respondents and intervenors urge the Court to dismiss the proceedings and quash the writ on the ground that mandamus is improper in this case, because (1) the law does not specifically impose a duty on the Corporation Commission to approve the terms of the Trico-Corona contract, (2) there is a plain, adequate and speedy remedy at law, and (3) the Commission acts judicially and within its jurisdiction in determining whether the contract shall be approved.

At the hearing on the original application, August 10, 1962, the respondent Commission represented to the Court that it had, on that day, made and entered two certain orders as follows: (1) it disapproved the proposed Trico-Corona contract; (2) in a consolidated proceeding pending before the Commission involving conflicting applications of Trico and Tucson Gas, it established by metes and bounds the respective operating areas of each, had issued to each an amended certificate of convenience and necessity and that the territory involved in the Trico-Corona contract had been awarded to Tucson Gas. This order was the basis for rejecting the Trico-Corona contract, the territory to be served under that contract being within the boundaries of the newly awarded amended certificate of Tucson Gas.

Trico has raised the point, of which we take passing notice, that the Commission had no jurisdiction to enter these orders after this Court has assumed jurisdiction over this proceeding. If the effect of either of such orders is to defeat or usurp the jurisdiction of this Court, or to render any judgment to be entered by this Court nugatory, such order would be void. Whitfield Transportation, Inc. v. Brooks, 81 Ariz. 136, 302 P.2d 526. In view of the conclusions arrived at later in this opinion, it will be unnecessary to discuss the application of the rule to the facts of this case.

After the filing of the original petition in this Court and prior to a hearing thereof on August 10, 1962, Tucson Gas hastily constructed over three miles of distribution lines into the northern portion of the area proposed to be served under the Trico-Corona contract, and along the west line of the section in which Trico's distribution lines terminated. Assuredly, it acquired no new operating rights by such tactics and in event of decision herein adverse to Tucson Gas, may ultimately be required to remove the lines.

The determinative questions here presented are:

(1) Was the Commission under a duty to give effect to the Trico-Corona contract, and if so, is Trico entitled to relief by way of mandamus?

(2) The answer to (1) will depend in part on the question of whether the Commission in entering its order of August 10, 1962, certificating to Tucson Gas the territory to be served under the proposed Trico-Corona contract exceeded its jurisdiction. If it did not, then its decision disapproving the contract, whether right or wrong, could not be questioned by mandamus in this proceeding.

These problems will be dealt with in reverse order. First, did the Corporation Commission have jurisdiction to make its order of August 10, 1962, and to include within the territory described in the amended certificate of Tucson Gas, the area designated as Madera-Corona land? It is necessary to understand the background of events which led to the present litigation. Much of that background is set forth in Trico Electric Cooperative, Inc. v. Corporation Commission, 86 Ariz. 27, 339 P.2d 1046, hereinafter referred to as the 'Trico case'. Trico is a domestic corporation which was organized in October, 1945, to operate as a non-stock, non-profit, electric cooperative. Under its original charter it could sell and distribute electricity only to its members. Tucson Gas is a privately owned public electric utility duly certified by the Corporation Commission and operates (principally) in Tucson and vicinity. Trico is a public service corporation (see Trico case, supra) and has been granted a certificate of public convenience and necessity by the Arizona Corporation Commission to serve its members in the rural areas of Pima, Pinal and Santa Cruz counties, with the restriction that it may not serve any member within one-half mile of the lines of any other distributor of electricity which were constructed prior to those of Trico without first obtaining authority from the Commission. It will be noted that neither the certificate of Trico nor the certificate of Tucson Gas delineates a definitive territory. The former refers to 'area', the latter to 'vicinity' in describing area of operation.

In November, 1959, a few months after the decision in the 'Trico case' became final, Trico applied to the Corporation Commission 'for an order delineating the boundaries of its existing certificate of convenience and necessity by metes and bounds in portions of Pima, Pinal and Santa Cruz counties'. While this application was pending and in March, 1960, Tucson Gas petitioned the Commission to amend its certificate in Pima County. The Commission ordered both applications consolidated for hearings, which were held in September, 1960, and May and October, 1961.

In September, 1961, Trico amended its Articles of Incorporation to remove the limitation therein with respect to service to its members only. Trico thereupon moved to amend its application and its certificate so that it might serve without regard to membership in the territory which it sought to have delineated. The Commission, after extended hearings, took the matter under advisement in January, 1962, and on August 10, 1962, after this mandamus proceeding was filed, issued its decision and order. By its order it granted to each applicant certain designated territory, by a metes and bounds description, and removed the limitation on Trico's certificate respecting service to members only.

Prior to the entry of the aforementioned orders and about May of 1962, Corona became a member of Trico and a contract was negotiated between them for extension of electrical service to several sections of land in a designated rural area which Corona was undertaking to subdivide and develop into residence properties for purpose of sale. This contract complied with the rates on file and approved by the Commission. The land involved was owned or leased by Corona and comprised a portion of a much larger area (herein referred to as Madera-Corona area) in which Trico had built a distribution line representing a substantial investment. Trico had established service therefrom to a small number of customers for whom it had been rendering service since 1956. Trico was authorized to serve the area in question under its certificate. Tucson Gas had no service lines. in that area.

On May 9, 1962, respondent Commission issued a letter to both Trico and Tucson Gas stating that, among other things, Trico should not serve or contract to serve Corona without first obtaining consent and approval of the Commission. Whereupon Trico made formal application to the Commission for approval of the proposed contract.

Corona cannot proceed with its development program without electric power for construction and domestic purposes. Its fixed charges, interest and salary expense are estimated by it to be $300.00 per day, and delay in securing electric power will impose great loss and hardship upon Corona.

In the consolidated applications which culminated in the order of August 10, 1962, Trico requested that its existing territorial operating area be delineated by metes and bounds. Trico did not request additional territory--only that the Commission outline what it already had. Tucson Gas sought a substantial enlargement of its certificated area, which overlapped in many areas the territory being then served by and under certificate to Trico. The Commission could have...