Williams Elec. Co-op., Inc. v. Montana-Dakota Utilities Co.

• Decision Date: 27 September 1956
• Docket Number: MONTANA-DAKOTA,No. 7584,7584
• Parties: WILLIAMS ELECTRIC COOPERATIVE, Inc., Complainant and Appellant, v.UTILITIES CO., Respondent.
• Court: North Dakota Supreme Court

Page 508

79 N.W.2d 508

17 P.U.R.3d 27

WILLIAMS ELECTRIC COOPERATIVE, Inc., Complainant and Appellant, v. MONTANA-DAKOTA UTILITIES CO., Respondent.

No. 7584.

Supreme Court of North Dakota.

Sept. 27, 1956.

Rehearing Denied Dec. 14, 1956.

Syllabus by the Court.

1. On appeal from the determination of an administrative agency the scope of review of the record is set forth in Section 28-3219, NDRC 1943, and the court shall affirm the decision of the agency unless one or more of the conditions stated therein exist.

2. The courts do not have the jurisdiction, primarily, to decide administrative questions assigned to the Public Service Commission for determination, and where such Commission in its proceedings furnishes due process of law and there is substantial evidence to support the findings of the Commission, the courts have no authority to substitute their judgment for that of the Commission.

3. The Public Service Commission has only such powers in the regulation of public utilities as have been conferred upon it by the legislature.

4. The Public Service Commission is not charged with the enforcement of private contracts. Its function is to regulate public utilities and not to compel enforcement of contractual obligations, except where it has been granted power by organic or valid statutory enactments to do so.

5. Insofar as the appellant and the respondent, in this proceeding, seek the construction, interpretation and enforcement of the agreement between them, dated July 21, 1952, for reasons stated in the opinion, the Public Service Commission was without jurisdiction to construe, interpret or enforce the terms thereof.

6. A public utility is not required to have a certificate of public convenience and necessity if it extends its service into 'territory contiguous to that already occupied by it and not receiving similar service from another utility, or electric cooperative corporation or if no certificate of public convenience and necessity has been issued to any other public utility.' Section 49-0301(3), NDRC 1953 Supp.

7. The word 'contiguous' means immediately successive; in actual or close contact. Likewise, 'contiguously' means in contact with; joining; touching; touching along a considerable part or the whole of one side; touching or joining at the edge or boundary.

8. 'Contiguous territory' means territory touching, adjoining and connected, as distinguished from territory separated by other territory.

9. The phrase 'not receiving similar service from another utility, or electric cooperative corporation' as used in Section 49-0301(3), NDRC 1953 Supp., has reference to service in fact as distinguished from ability to give service. It denotes actual physical delivery of electric energy.

10. For reasons stated in the opinion, the appellant has been afforded a fair hearing upon the issues presented to the Public Service Commission in this proceeding.

Bjella, Jestrab & Neff, Williston, for appellant.

Burk & O'Connell, Williston, and Earl H. A. Isensee, Minneapolis, Minn., for respondent.

JOHNSON, Judge.

This is an appeal from a judgment of the district court of Williams County, affirming an order dismissing a complaint made by the appellant against the respondent and heard before the Public Service Commission.

The contentions of the appellant were divided into two claims. The first alleges that the appellant and the respondent had entered into an agreement, dated July 21, 1952, to settle a dispute between them as to which areas in the vicinity of Williston, North Dakota, each was to serve with electricity; that the appellant had performed all the conditions of the agreement, but that the respondent had willfully and wrongfully violated the terms thereof. The second claim alleges that the respondent had unlawfully extended its electrical distribution and transmission lines in violation of Section 49-0301, NDRC 1953 Supp.; that unless respondent is restrained by an order to cease and desist the complainant (appellant) would suffer irreparable injury by enticing away of its present and prospective customers, necessitating the construction of duplicating electrical lines injurious to it and to the public interest, and not which damages are not capable of exact proof. Both claims allege that these acts will interfere unreasonably with the service and system of the complainant (appellant). To this complaint the respondent entered and filed a special appearance alleging that the Commission had no jurisdiction either to construe or enforce the contract, that being a judicial function; that the complaint did not set forth facts sufficient to constitute a basis for action by the Commission or to apprise the respondent of the issues involved.

From the complaint and the evidence it appears that the appellant objected to extensions of electric service by the respondent to property designated as the Edward Hamann property, Blox, Inc., North Dakota Concrete Products Company, Williston Basin Refining Corporation, Matt Anderson at Ray, and Amerada Trailer Camp at Tioga. There was some discussion concerning the Njos property, but as we shall see later, that is not involved in this proceeding.

The Public Service Commission set this matter for hearing on October 16, 1953, at Williston, North Dakota. During this hearing the appellant attempted to introduce in evidence facts with reference to the extension by the respondent of its electrical lines in the vicinity of the cities of Ray and Tioga, which it alleged were unlawful. The respondent objected to the introduction of this evidence on the ground that the original complaint was not drawn with sufficient particularity to apprise the respondent of this issue. The Public Service Commission agreed with this contention and recessed the hearing to November 30, 1953, and granted the appellant the right to enter and file an amended complaint. Upon resumption of the recessed hearing the respondent reasserted its special appearance and filed an answer to the amended complaint. The respondent asserted that its participation in the hearing and the filing of its answer did not constitute a waiver of its special appearance. In its answer the respondent generally denied the allegations of the complaint except as admitted. It acknowledged the execution of the agreement dated July 21, 1952; but alleged that under the rules of the Public Service Commission, particularly rule 23, the respondent was obliged to serve new customers irrespective of the areas in which such customers might be located; that the contract had been terminated; that if it had not been terminated, the appellant had not complied with paragraph 6 thereof, requiring written notice to the respondent setting forth unforeseen developments and requesting a meeting to resolve the difference, and that until it did so, it was in no position to complain; that the appellant had also violated the terms and conditions of the agreement.

The answer further generally asserted that the extensions of the electrical line of the respondent to the parties named in the complaint were lawful and in accord with the statutes, particularly Section 49-0301, NDRC 1953 Supp., and that the respondent is not required to have a certificate of public convenience and necessity for such extensions.

The Public Service Commission took extensive testimony upon the issues involved. It made findings of fact, conclusions of law, and an order dismissing the complaint of the appellant.

The Williams Electric Cooperative, Inc., appellant here, appealed from the decision of the Public Service Commission to the district court of Williams County, North Dakota. The matter was heard by the district court upon the record made in the Public Service Commission and the court affirmed its decision. The Williams Electric Cooperative appealed from the judgment of dismissal to this court.

Upon the appeal to the district court the appellant presented and argued twenty-nine specifications of error. In this court it presented these contentions under five main points:

1. Contract;

2. That the respondent's installation complained of was constructed without a certificate of public convenience and necessity required by Section 49-0301 as amended and in violation of the complainants' rights under Chapter 10-13, NDRC 1943;

3. That rule 23 of the Public Service Commission, Standards of Electric Service, has no application to the issues;

4. That the findings are unsupported by the evidence, and the conclusions unsupported by the findings;

5. The appellant was denied a fair hearing.

The issues thus argued and presented by the appellant reduce themselves to a determination of the following questions:

1. Does the Public Service Commission have jurisdiction to construe and enforce the contract entered into between the appellant and the respondent on July 21, 1952?

2. Were the extensions of transmission and distribution lines made by the respondent, and complained of in these proceedings, in violation of the statutes, and particularly Section 49-0301, NDRC 1953 Supp.?

3. Was the appellant denied a fair hearing in these proceedings?

Insofar as it is necessary to an understanding of the issues involved, we set forth the findings, conclusions and order of the Public Service Commission. It found as facts:

'3. On or about September 14, 1953, Montana-Dakota Utilities Company effected an extension of its electric distribution system to serve the North Dakota Concrete Products Company situate in Section 19-154-101 across the road from the city limits of Williston, North Dakota.

'4. During September, 1953, Montana-Dakota Utilities Company effected an extension of its distribution system about one-half a mile east of the above-mentioned North Dakota Concrete Products Co. to serve the Williston Basin Refining Corporation in Section 19-154-101.

'5. Commencing on or about the 16th day of February, 1953, MDU effected an extension of its electric distribution system to...