HomeMy WebLinkAbout20021001Motion to Stay.pdfLARRY D. RIPLEY ISB #965
BARTON L. KLINE ISB #1526
Idaho Power Company
O. Box 70
Boise , Idaho 83707
Phone: (208) 388-2674
FAX: (208) 388-6936
Attorney for Idaho Power Company
Express Mail Address
1221 West Idaho Street
Boise, Idaho 83702
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BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF IDAHO POWER COMPANY FOR AN
ORDER APPROVING THE COSTS TO BE
INCLUDED IN THE 2002/2003 PCA YEAR
FOR THE IRRIGATION LOAD REDUCTION
PROGRAM AND ASTARIS LOAD
REDUCTION AGREEMENT
CASE NO. IPC-01-
MOTION OF IDAHO POWER
COMPANY FOR STAY OF
COMMISSION ORDER NOS.
28992 AND 29103 RELATING
TO REDUCED/LOST REVENUE
FROM THE IRRIGATION LOAD
REDUCTION PROGRAM
INTRODUCTION
On April 15 , 2002 , and August 29, 2002, the Idaho Public Utilities
Commission entered its Orders disallowing the recovery of reduced/lost revenues
attributable to Idaho Power Company s ("Idaho Power" or the "Company ) Irrigation Load
Reduction Program. Idaho Power intends to appeal those Orders to the Idaho Supreme
Court and is in the process of preparing its Notice of Appeal. The Notice of Appeal will be
filed in early October. In preparing the appeal , Idaho Power is uncertain as to the
applicability of the attached Idaho Supreme Court decision, Le.Utah Power Light Co.
MOTION OF IDAHO POWER COMPANY FOR STAY, Page
V. Idaho Public Utilities Commission 685 P.2d 276 , 107 Idaho 47 (1984) (Utah Power
decision), which pertains to a general rate increase proceeding. Nonetheless the
Company does not desire to put itself at peril if it is contended that the Utah Power
decision is applicable to the finite amount of revenue that the Company will request the
right to recover in its appeal. Accordingly, the Company is requesting that the
Commission enter its Order staying that portion of Order Nos. 28992 and 29103
concerning the recovery of the reduced/lost revenues attributable to the Irrigation Load
Reduction Program during the pendency of the appeal to the Idaho Supreme Court.
MOTION
Pursuant to RP 324, Idaho Power moves for an Order from the Commission
staying portions of Order Nos. 28992 and 29103 and approving the accounting
methodology as set forth below to allow potential recovery of the reduced/lost revenues
attributable to the Irrigation Load Reduction Program in the event that Idaho Power is
successful in its appeal:
To close out the regulatory asset and transfer the balance to Account 186 until
final disposition of the asset is known after all legal process are completed.
186 Miscellaneous Deferred Debits
799 XOOO01 999 186986 $12 015,187.
182.3 Other Regulatory Assets
799 XOOO01 999 182.395
$12 015 187.
To establish a reserve for potential loss of Irrigation Lost Revenues to be
determined in Court proceedings. The entries were made to conform to GAAP
accounting principles.
401 Operation Expense
699 M301 08441 5557001 $11 587 179.
421 Miscellaneous Non-operating Income
699 XOOO01 999 421006 428 008.
MOTION OF IDAHO POWER COMPANY FOR STAY, Page 2
228.4 Accumulated Miscellaneous Operating Provision
799 XOOO01 999228.405 $12 015,187.
Idaho Power is concerned that if a stay of the requested portions of
Commission Order Nos. 28992 and 29103 is not granted, and it is determined that
without a stay Idaho Power may not recover the reduced/lost revenues even if it were to
prevail on appeal , irreparable injury to the Company would result in that Idaho Power
would lose its right to recover $12 015 187.26. It should be noted that consistent with the
Power Cost Adjustment deferral methodology, Idaho Power ceased applying any carrying
charges to the above amounts as of March 31 , 2002. The Company would not propose
to accumulate any additional carrying charges during the pendency of the appeal and
would acknowledge that additional carrying charges, if any, would be determined by an
appropriate Order of either the Idaho Supreme Court or the Idaho Public Utilities
Commission in the event that Idaho Power is successful in its appeal.
RELIEF REQUESTED
WHEREFORE, Idaho Power respectfully requests that the Commission
issue its Order staying the portion of Order Nos. 28992 and 29103 in which it denied
recovery of the reduced/lost revenues attributable to the Irrigation Load Reduction
Program and approving the accounting methodology as set forth in this Motion to allow
potential recovery of the reduced/lost revenues attributable to the Irrigation Load
Reduction Program in the event that Idaho Power is successful in its appeal.
MOTION OF IDAHO POWER COMPANY FOR STAY, Page 3
DATED at Boise , Idaho, this 1st day of October, 2002.
MOTION OF IDAHO POWER COMPANY FOR STAY, Page 4
TT A CHMENT
Utah Power Light Co.
Idaho Public Utilities Commission
685 P.2d 276; 107 Idaho 47 (1984)
UTAH POWER & LIGHT v. IDAHO PUBLIC UTIL.
Cite 88 107 Idaho 47
as this, where there is substantial compe- Verdes Inv. Corp.104 Idaho 897, 665P.
tent evidence in the record to support the 661 (1983).
verdict of the jury, we normally could Judgment on the claim for injury to real
merely affirm that jury verdict. property is reversed. Judgment n.v. on .
(9,10) However, a problem is posed in the claim for injury to the cattle is also
this case due to the fact that the trial court reversed. The cause is remanded to enter
failed to instruct the jury on the proper judgment for Simplot and FMC on the first
measure of damages to the cattle. In- count, and for a new trial on the latter
stead, the trial court instructed. the jury count.
that the plaintiff was required to prove
gross income minus overhead expenses. It
is clear. from the record that the plaintiff
did not prove this. However, that is not
what he was required to. prove in order to
recover for damage to the cattle. It is also
clear . from the record that the plaintiff
requested an instruction, numbered 9
which reads in part:
In ascertaining damages, you should
consider:
I. any loss or damage to cattle raised
on the property measured by the value of
the cattle lost. .
. . "
This is an instruction which approximates
that which would be given in a case such as
this where the plaintiff is attempting to
recover for damage to personal property.
It is also clear that the plaintiff objected to
the trial court's failure to give this instruc-
tion. The following is an exerpt from the
instructional conference:
Mr, McCoy: I feel that our Instruction
No, 9 should be inserted, which covers
loss or damage to the cattle raised on the
property measured by the value lost. .
. .
THE COURT: I'm going to overrule
your request on that.
Because requested instruction number 9
represented. a proper measure of damages
to be used for damage to the cattle, it
should have been given to the jury. To
refuse to give this instruction was error.
Because this error was prejudicial to the
plaintiff, a new trial must be granted on
this issue.
Spanbauers also urge that if this cause is
reversed for a new trial we also consider
whether the trial court erred in disallowing
Spanbauers' alleged claim of punitive dam-
ages. We see no error in the trial court'
handling of that issue. Cheney v. Palos
,-seven dollars
at died, do you
at the value of
en had they not
condition that
,een worth that No costs or attorney fees are awarded on
appeal.
;y-seven dollars DONALDSON, C.SHEPARD and
BISTLINE, JJ., and McFADDEN, J.pro
tern., concur.evidence of the
before and after
defendants. As
lt to support at
Ilaintiff for dam-
erty, the cattle.
! cattle itself is
lot one involving
profits, such as
l FMC. See Pa-
,hone Co. v. Riv-
163 (1964) (claim
alleged improper
7illiams v. Bone
I (1953) (claim for
s because of de-
alof advertising
mstances in this
lble those cases
lage to the assets
;onal property of
ton Stores Co. v.
aho 355, 372R2d
;er damage to in-
!lent). Normally,
sed in these situa-
andise. cannot be
iginal condition.
the difference be-
before the injury
er the injury. See
0. v. Boise Water
Be, that difference
Lttle is what Span-
prove at trial, and
have awarded him
been properly in-
In a situation such
685 P.2d 276
UTAH POWER & LIGHT COMPANY,
Appellant,
IDAHO PUBLIC UTILITIES COMMIS-
SION, Idaho Irrigation Pumpers Assn.,
Inc., Beker Industries.Corp., and Mon-
santo Company, Respondents.
In the Matter of the MOTION OF UTAH
POWER & LIGHT CO. TO ALTER
AND AMEND ORDER NO. 13448,
CASE NO. U-1009-84.
No. 14433.
Supreme Court of Idaho.
June 20, 1984.
The Public Utilities Comnii~sion dis-
missed electric company s application for
surcharge, and company appealed. The Su-
preme Court, Bistline, J., held that Commis-
sion did not have authority. to grant. sur-
charge to recover past losses caused by
invalid order whiCh had been set aside on
appeal.
Affirmed.
107 IDAHO REPORTS UTAH
Shepard, J., dissented and filed opin-
ion.
1. Public Utilities e:-189
When any party, be it utility, ratepayer
or state, appeals rate setting order of Pub-
lic Utilities Commission to the Supreme
Court, but does not stay effectiveness of
such order by posting bond under terms of
public utility law, rates and charges set
forth by such order are final in all respects
as service is provided and consumed so
long as such order continues in effect. I.C.
99 61-633 to 61-638.
2. Public Utilities e:-194
If rate setting order of Public Utilities
Commission is later set aside by the Su-
preme Court, no rates and charges previ-
ously collected may be adjusted as a result
and no rates and charges later established
by Commission may be adjusted from what
they otherwise would have been to take
into account what appealed order would
have been before it was set aside had it
during time it was in effect, conformed to
or been altered or amended to meet objec-
tions of opinion of the Supreme Court. I.C.
99 61-633 to 61-638.
3. Public Utilities e:-147
Public Utilities Commission has no au-
thority to award damages except as given
to it by statute.
4. Public Utilities e:-189
As primary requisite for issuance of
stay of effectiveness of rate setting order
of Public Utilities Commission, court must
make finding that irreparable damage will
result from probable confiscation. I.C.
99 61-633, 61-636.
5. Public Utilities e:-147
Public Utilities Commission has no au-
thority not given it by statute.
I. Pursuant to I.C. ~ 61-622 a public utility may
raise its rates, but those rates are automatically
suspended until thirty days have expired or the
PUC holds a hearing on the question, whichever
time period is shorter. If no hearing is held by
the end of thirty days, the public utility s pro-
posed rates then become effective subject to
potential subsequent modification by the PUC
6. Electricity e:-l1.3(6)
Where Public Utilities Commission cor-
rectly held that it did not have jurisdiction
to grant requested relief of surcharge, it
was equally correct in declining to embark
on fruitless course of proceedings involving
further hearings on merits of electric com-
pany s petition. I.C. 9 61-629.
granted in part UP & )
hearing. UP & L timel
Court from Order No.
part its petition for rehE
In the meantime, a rl
On March 16, 1978, th,
that it had erred in one
lation of UP & L's re.
and that Order No. 1344
1977, should have gran
647 900 to UP &
issued Order No. 13739
Order No. 13448 and au'
file higher tariffs based
of the earlier order.
F. Merrill of Merrill & Merrill, Poca-
tello, Sidney G. Baucom, Salt Lake City,
Utah, for appellant.
David H. Leroy, Atty. Gen., Michael S.
Gilmore, Deputy Atty. Gen., Boise, Racine
Huntley, Olson, Nye & Cooper, Pocatello
Dan L. Poole, of Elam, Burke, Evans, Boyd
& Koontz, Boise, for respondents.
UP & L's appeal frOt
came at issue in Dec€
Court issued an opinion
Power Light Compa~
Utilities Commission
2d 678 (1981) (UP
In UP L I, the CO1
Order No. 13448 becausl
the PUC erred by failil
ments to the 1976 test y
known and measurabl
error resulted in the
artificially low rate bas
2d at 680.
On July 27 , 1981 , UP
for hearing with the Pl
modify Order No. 1344
Court in UP L I and t
shortfall of operating
from that order. By tE
its submitted, UP &
amount of additional
should have recovered
13448's period of effec
tember 29, 1977, to ~
$6,068,000. It requeste
to recover this deficienc
its Idaho customers
month period.
Upon receiving UP
PUC raised the questio
impose a surcharge of
by UP & L and set or
matter. After argume
BISTLINE, Justice.
The basic issue presented today is wheth-
er the Idaho Public Utilities Commission
(PUC) has the authority to grant a public
utility a surcharge to recover past losses
caused by an invalid PUC order set aside
by this Court on appeal.
On December 29, 1976, Utah Power &
Light Company (UP & L) applied to the
PUC to increase its rates and charges for
its customers in the State of Idaho
$12 536 000. UP & L requested that the
proposed rates and charges become effec-
tive on January 31 , 1977. The proposed
rates were suspended by the PUC pursuant
to LC. 9 61-622.
On September 29, 1977, pursuant to Or-
der No. 13448, the PUC authorized UP & L
to increase its rates and charges by $3 371
408 annually instead of by the $12 536,000
requested by UP & L. UP & L timely
petitioned for rehearing from this order.
On November 11 , 1977, the PUC issued
Order No. 13550 which denied in part and
pursuant to I.C. 9 61-502, unless the PUC. pur-
suant to the terms of the statute, extends the
period of suspension. Citizens Utility Co. v. Ida-
ho Public Utilities Commission 99 Idaho 164
579 P.2d 110 (1978). A court order staying a
PUC order therefore permits the public utility
rates as proposed to go into effect.
UTAH POWER & LIGHT v. IDAHO PUBLIC UTIL.
Cite 88 107 Idaho 47
granted in part UP & L's petition for re- an informal oral ruling from the be~ch and
hearing. UP & L timely appealed to this declined to hold any further
hearmgs on
Court from Order No. 13550 denying
in UP & L's petition.
part its petition for rehearing.
In the meantime, a rehearing was held.
On March 16, 1978, the PUC determined
that it had erred in one aspect of its calcu-
lation of UP & L's revenue requirement
and that Order No. 13448 of September 29,
1977, should have granted an increase of
647 900 to UP & L. The PUC then
issued Order No. 13739 which superseded
Order No. 13448 and authorized UP & L to
file higher tariffs based upon its correction
of the earlier order.
UP & L's appeal from Order No. 13448
came at issue in December, 1978. This
Court issued an opinion in the appeal Utah
Power Light Company v. Idaho Public
Utilities Commission 102 Idaho 282, 629
2d 678 (1981) (UP 1), in May of 1981.
In UP L I the Court set aside PUC
Order No. 13448 because it determined that
the PUC erred by failing to make adjust-
ments to the 1976 test year data for certain
known and measurable changes " which
error resulted in the establishment of an
artificially low rate base.
Id. at 284, 629
2d at 680.
On July 27, 1981, UP & L filed a petition
for hearing with the PUC requesting it to
modify Order No. 13448 set aside by this
Court in UP L I and to recover UP & L's
shortfall of operating revenue resulting
from that order. By testimony and exhib-
its submitted, UP & L quantified the
amount of additional revenue which it
should have recovered during Order No.
13448's period of effectiveness from Sep-
tember 29 , 1977, to March 21, 1978, as
068,000. It requested that it be allowed
recover this deficiency by a surcharge to
its Idaho customers imposed over a 12-
month period.
Upon receiving UP & L's petition, the
PUC raised the question of its authority to
impose a surcharge of the kind requested
by UP & L and set oral argument in the
matter. After argument, the PUC issued
, Commission cor-
have jurisdiction
of surcharge, it
~lining to embark
:eedings involving
;s of electric com-
629.
. & Merrill, Poca-
, Salt Lake City,
Gen., Mi~el
~n., Boise, Racine
Cooper, Pocatello,
urke, Evans, Boyd
pondents.
;ed today is wheth-
ilities Commission
to grant a public
ecover past losses
JC order set aside
, Utah Power &
L) applied to the
~s and charges for
;tate of Idaho
requested that the
rges become effec-
,77. The proposed
the PUC pursuant
, pursuant to Or-
authorized UP & L
charges by $3,371
by the $12 536 000
,. UP & L timely
g from this order.
, the PUC issued
denied in part and
, unless the PUC, pur-
he statute, extends the
tizens Utility Co. v. Ida-
nission, 99 Idaho 164,
court order staying a
mits the public utility
into effect.
(1-3) The PUC summarized the Public
Utility Law thus in denying UP & L's re-
quest for a surcharge:
(W)e construe the Public Utility Law as
fol1ows: When any party, be it utility,
ratepayer or the State of Idaho
, appeals
a rate setting Order of the Idaho Public
Utilities Commission to the Supreme
Court of Idaho, but does not stay the
effectiveness of the Order by posting
bond under the terms of the Public Utili-
ty Law, then the rates and charges set
forth by that Order are final in all re-
spects as service is provided and con-
sumed so long as the Order continues in
effect. If the Order is later set aside by
the Supreme Court of Idaho, no rates
and charges previously collected may be
adjusted as a result; similarly, no rates
and charges later established by the
Commission may be adjusted from what
they otherwise would have been to take
into account what the appealed Order
would have been before it was set aside
had it, during the time it was in effect
conformed to or been altered or amended
to meet the objections of the opinion of
the Supreme Court of Idaho. The stat-
. utes governing rehearing, appeal and
stay of our orders, and the general prohi-
bitions against setting rates based upon
previous periods of unreasonably high or
unreasonably low rates, admit no other
construction. Weare a regulatory Com-
mission, not a court of law , and have no
authority to award damages except as
given to us by statute.(Footnote omit-
ted.
We agree with the PUC's interpretation of
the Public Utilities Law and therefore af-
firm its decision in this case.
UP & L contends that the stay and bond
procedures provided by the Public Utilities
107 IDAHO REPORTS UTA
Laws, I.C. 99 61-633 through 61-638 2 do
not provide the exclusive means for obtain-
ing monetary relief from PUC orders deny-
ing public utilities' requested rate increas-
es. UP & L argues that these procedures
are not always available to a petitioning
party and so should not be construed as
providing the exclusive means for obtain-
ing monetary relief.
A. EXCLUSIVE REMEDY
UP & L contends that the granting of a
stay by either the district court or the
Supreme Court pursuant to I.C. 99 61-633
and -636 is discretionary with the courts.
UP & L argues that under the PUC's inter-
pretation of the stay and bond provisions
an appeal can only be an effective remedy
if the reviewing court chooses to exercise
its discretion in granting a stay. UP & L
argues that to make the effectiveness of an
2. 1.C. ~ 61-633 provides that:
No court of this state shall enjoin or restrain
the enforcement of any order of the commis-
sion or stay the operation thereof, unless the
applicant for ~uch writ shall give three (3)
days' notice of said application to all adverse
parties and to the commission.... (IJf an
injunction, restraining order or other order
suspends or stays the order of the commission
as issued, such order shall contain a specific
finding based upon the evidence submitted to
the court and identified by reference thereto
that great and irreparable damage would re-
sult to the petitioner and specifying the nature
of the damage." (Emphasis added.
1.C. ~ 61-634 provides that: "In case the order
or decision of the commission is stayed or sus-
pended, the order shall not become effective
until a suspending bond has been executed. . . .
1.C. 9 61-635 provides that: "The pendency of
an appeal shall not of itself stay or suspend the
operation of the order of the commission, but
during the pendency of such appeal, the Su-
preme Court may stay or suspend, in whole or
in part, the operation of the commission s or-
der.
1.C. ~ 61-636 provides that:
No order so staying or suspending an order
or decision of the commission shall be made
by the court otherwise than upon a three (3)
days' notice and after hearing, and if the or-
der or decision of the commission is suspend-
, the order suspending the same shall con-
tain a specific finding based upon the evi-
dence submitted to the court and identified by
reference thereto, that great or irreparable
damage would otherwise result to the peti-
tioner and specifying the nature of the dam-
age." (Emphasis added.
1.C. ~ 61-637 provides that:
In case the order or decision of the commis-
sion is stayed or suspended, the order of the
appeal hinge upon the granting of a discre-
tionary stay conflicts with its basic due
process rights and with I.C. 9 61-627
which grants any aggrieved party a direct
right of appeal to the Supreme Court.
In Joy v. Winstead 70 Idaho 232, 238
215 P.2d 291, 293 (1950), this Court, in
addressing the question of a district court'
jurisdiction to stay PUC orders, first ob-
served "that due process requires that
courts stay an order of a commission, i.e.
regulatory body, if enforcement thereof
may result in confiscation and irreparable
loss, until the final adjudication, through
appropriate channels, of the correctness of
the order." The Court followed with the
declaration that "pendente lite, the Compa-
ny must be protected against confiscation
if irreparable, and to insure and accomplish
this Courts may and.
sion does not, stay en1
catory rate, correspon
consumer." 70 Idaho
Our reading of this p
lowing correction of
error in capitalization
tuation, is that "to ins
company s protection
courts may, and mus
does not, enter apprc
Four years later thii
States Tel. Tel. Co.
267 P.2d 634 (1954), in
v. Winstead observed
in in any way outlinl
what was necessary t
to justify a stay order.
2d at 636. After cit
for the proposition
obtain a stay "is not a
extraordinary, emerge
pendente lite for the
of considering tempo
probable confiscation
2d at 637, the Cour1
issuance of a stay laid
sidered judicial discreti
after a full hearing
probable conf'u;cation.
ance which was not,
Winstead the Court
'Y"lfice Commission
225 Ind. 30, 72 N .E.2d
the rule that:
" , "
All that is neceSi
show that it is prima
injunction; that the
will be certain and
plication for an inte
be denied, and, if the
court shall not become effective until a sus-pending bond shall first have been executed
and filed with, and approved by the commis-
sion (or approved on review by the court),
payable to the people of the state of Idaho
and sufficient in amount and security to in-
sure the prompt payment, by the party peti-
tioning for the review, of all damages caused
by the delay in the enforcement of the order
or decision of the commission. .. in case said
order or decision is sustained."
1.C. ~ 61-638 provides that:
In case the court stays or suspends any order
or decision lowering any rate, fare, toll, rent-
al, charge or classification, the commission,
upon the execution and approval of said sus-
pending bond, shall forthwith require the
public utility affected... to keep such ac-
counts verified by oath, as may in the judg-
ment of the commission suffice to show the
amounts being charged or received by such
public utility, pending the review, in excess of
the charges allowed by the order or decision
of the commission, together with the names
and addresses of the corporations or persons
to whom overcharges will be refundable in
case the charges made by the public utility,
pending the review, be not sustained by the
court. . . . Upon the final decision by the
court, all moneys which the public utility may
have collected, pending the appeal in excess
of those authorized by such final decision
together with interest in case the court or-
dered the deposit of such moneys in a bank or
trust company, shall be promptly paid to the
corporations or persons entitled thereto
such manner and through such methods of
distribution as may be prescribed by the com-
mission." (Emphasis added.
3. The problem in the
the district court s indica
position that no additio
received or considered, \
unduly and prejudiciall~
at 83, 267 P.2d at 637
justices agreed that:
The action of the tri:
versed as improvident
before him were insl
injunction permitting
creased rates to avoid (
not passed on, but be
ranting of a discre-
with its basic due
'ith LC. 9 61-627
eved party a direct
upreme Court.
70 Idaho 232, 238
50), this Court, in
of a district court'
C orders, first ob-
cess requires that
, a commission, i.
1forceDlent thereof
.ion and irreparable
ljudication, through
f the correctness of
t followed with the
nte lite, the Compa-
Lgainst confiscation
sure and accomplish
e effective until a sus-
:st have been executed
proved by the commis-
review by the court),
of the state of Idaho,
unt and security to in-
lent, by the party peti-
. of all damages caused
forcement of the order
mission. .. in case said
Istained."
. that:
s or suspends any order
my rate, fare, toll, rent-
:ation, the commission,
ld approval of said sus-
forthwith require the
I ... to keep such ac-
th, as may in the judg-
ion suffice to show the
ed or received by such
. the review, in excess of
)y the order or decision
:)gether with the names
corporations or per~ons
5 will be refundable in
Ie by the public utility,
be not sustained by the
: final decision by the
ch the public utility may
ng the appeal in excess
by such final decision,
;t in case the court or-
uch moneys in a bank or
be promptly paid to the
Dns entitled thereto,
.rough such methods of
e prescribed by the com-
; added.
UTAH POWER & LIGHT v. IDAHO PUBLIC UTIL.
Cite 88 107 Idaho 47
this Courts may and must, if the Commis- ed, that the injury to the opposing party,
sion does not, stay enforcement of a confis- even if the final decree be in its favor,
catory rate, correspondingly protecting the may be adequately indemnified by
consumer." 70 Idaho at 238, 215 P.2d 291. bond.
" , "
Our reading of this passage, with the fol- 75 Idaho at 84, 267 P.2d at 637.
lowing correction of the obvious clerical
error in capitalization and another in punc- We read the language of the Mountain
tuation, is that "to insure and accomplish a
States case as modifying the language of
company s protection against confiscation Joy v. Winstead only to the extent of re-
courts may, and must if the Commission quiring a prima facie showing to establish
does not, enter appropriate stay orders.probable confiscation pendente lite.
Four years later this Court in Mountain (4) UP & L additionally argues that the
States Tel. Tel. Co. v. Jones, 75 Idaho 78 remedy provided by the stay and bond pro-
267 P.2d 634 (1954), in commenting on Joy cedures should not be thought exclusive
v. Winstea1: observed that it had not there- because the remedy is not available in
in in any' way outlined the procedure or cases in which there has been no showing
what was necessary to be shown in order of "irreparable damage to the petitioning
to justify a stay order. 75 Idaho at 82, 267 party.Irreparable damage is that injury
2d at 636. After citing Joy v. Winstead which cannot be adequately compensated
for the proposition that a proceeding to for monetarily. See Black's Law Diction-
obtain a stay "is not a rate hearing, but an ary 707 (rev. 5th ed. 1979). In response to
extraordinary, emergency proceeding
...
the contention that the issuance of a stay
pendente lite for the sole and only purpose was not necessary to protect the utility
of considering temporary relief against pending appeal from a confiscatory rate
probable confiscation,75 Idaho at 83 267 order and so was dlscretJona with the
2d at 637 , the Court concluded that the .court, the Court, in Joy v. Winstead, held
issuance of a stay laid in the "sound, con-that:
sidered judicial discretion of the trial court
after a full hearing on the single issue of
(TJo await appeal before a stay order
probable confiscation.3 Giving the guid- could be issued by this Court would be
ance which was not contained in Joy v. inadequate, is apparent for these rea-
Winstead, the Court quoted from Public sons: First, the losses sustained during
Service Commission v. Indianapolis Rys,
the time from May 14, 1948, when in-
225 Ind. 30, 72 N .2d 434, 439 (1947), for creased rates were asked and until ap-
the rule that: peal to this Court, not yet taken and now
" , "
All that is necessary is that plaintiff unavailable until the rehearing before
show that it is prima facie entitled to an the Commission is concluded, because the
injunction; that the injury to plaintiff rehearing must be completed (Sec. 61-
will be certain and irreparable if the ap- 627, LC.) before an appeal will lie and we
plication for an interlocutory injunction have jurisdiction to grant a stay, could
be denied, and, if the injunction be grant- not be recouped by an increased rate to
3. The problem in the Mountain States case was
the district court s indication in a summary dis-
position that no additional evidence would be
received or considered, which this Court saw as
unduly and prejudicially restrictive." 75 Idaho
at 83, 267 P.2d at 637. On rehearing, four
justices agreed that:
The action of the trial court herein was re-
versed as improvident, not because the facts
before him were insufficient to justify the
injunction permitting the charging of the in-
creased rates to avoid confiscation, which was
not passed on, but because opportunity was
not given the State or other interested parties
to introduce evidence contrary to the showing
made by the plaintiff
75 Idaho at 87, 267 P.2d at 639,
and also declared:
The underlying reason for the issuance of
this injunction, i., to prevent possible confis-
cation, still persists and the only pertinent
authority cited, United States v. Morgan, 307
S. 183, 59 S.C!. 795, 83 LEd. 1211, supra,
supports the continuation of the injunction as
ordered pendente lite."
75 Idaho at 88, 267 P.2d at 646.
.52 107 IDAHO REPORTS
cover them so such loss would be per-
manent.
70 Idaho at 240-41, 215 P.2d at 295 (em-
phasis added).
Thus, a finding that irreparable damage
resulting from probable confiscation must
be made as the primary requisite for the
issuance of a stay.
UP & L .urges a construction of the Pub-
lic Utilities Law that would make the statu-
tory standard of "great and irreparable
damage" meaningless and superfluous. If
a utility were to be held entitled to a sur-
charge or other monetary relief whenever a
PUC order is set aside upon appeal, the
failure to stay or enjoin enforcement of a
PUC order could never subject the utility toothe "great and irreparable damage" envi-sioned by the legislature in enacting I.C.
~9 61-633 and -636 (set out supra in n. 2).
B. PUBLIC UTILITIES LAW READ
AS A WHOLE
(5) UP & L contends that because there
is no express language in the Public Utili-
ties Law specifically declaring that the stay
and bond procedures are the manner by
which relief may be obtained from alleged-
ly invalid PUC orders, such should not be
considered as exclusive to other means-
this case the allowance of a surcharge.
Although there is no express language, it isreadily seen that the Public Utilities Law
itself neither provides nor suggests any
alternatives. It has been firmly estab-
lished that the PUC has no authority not
given it by statute.
The Idaho Public Utilities Commission
has no authority other than that given to
it by the legislature. It exercises a limit-
4. I.C. 9 61-622 provides that:
No public utility shall raise any rate...
under any circumstances whatsoever, exceptupon a showing before the commission and a
finding by the commission that such. increaseis justified. The commission shall have pow-er . .. to enter upon a hearing concerning thepropriety of such rate, ... and pending thehearing and decision thereon, such rate...
shall not go into effect.
. ..
On such hearing,the commission shall establish the rates...which it shall find to be just and reasonable.
(Emphasis added.
ed jurisdiction and nothing is presumed
in favor of its jurisdiction. United
States v. Utah Power Light Co.
Idaho 665, 570 P.2d 1353 (1977); Lemhi
Tel. Co. v. Mountain States Tel. Tel.
Co.98 Idaho 692, 571 P.2d 753 (1977);
Arrow Transp. Co. v. Idaho Public Util-
ities Comm 85 Idaho 307, 379 P.
422 (1963). As a general rule, adminis-
trative authorities are tribunals of limit-
ed jurisdiction and their jurisdiction is
. dependent entirely upon the statutes re-
posing power in them and they cannot
confer it upon themselves, although they
may determine whether they have it.
the provisions of the statutes are not met
and compliance is not had with the stat-utes, no jurisdiction exists.
Washington Water Power Co. v. Koote-
nai Environmental Alliance 99 Idaho
875, 879, 591 P.2d 122, 126 (1979).
I.C. 9 61-502 provides that:
Whenever the commission. . . shall find
that the rates... are unjust, unreason-
able, discriminatory or preferential
, '"
or that such rates... are insufficient
the commission shall determine the just
reasonable or sufficient rates.
..
to be
thereafter observed
....
(Emphasis
added.
This section provides only prospective re-
lief. It does not give the PUC authority to
prescribe surcharges or reductions tooth-
erwise reasonable rates in order to makeup past revenue shortfalls due to confisca-tory rates/
Although there is no statutory provision
directly on point, an examination of I.C.
99 61-502, -622 4 -6235 provides the back-
This section provides that when the PUC grants
a rate increase, the rate increase shall not be
retroactive to the time of application, even if itcan be shown that it would have been just and
reasonable to grant a rate increase at the time
of the application.
5. I.C. ~ 61-623 governs applications for rate de-
creases and parallels ~ 62-622 governing rate
increases. Under this section, when a utility
applies for a rate decrease, the PUC decreasesrates prospectively only: "(PJending the hearingand decision thereon, such rate. " shall not go
into effect. . .. On such hearing the commis-
UTAH!
ground against which th
must be examined. A
weaves through these pr
by order are final unle;
determinative of all right
long as they remain in
gard to whether they al
amended on rehearing or
ed after being set aside
provisions provide that
have prospective effect.
Court that the PUC has
utilities surcharges to n
cits would conflict with
with the express terms, (
The potential havoc
wreaked in this intricate
is evidenced by the resu
reached were this Cou
charges. For the purp
me nt, the time period h
Order No. 13448 was in
tember 29, 1977, to Man
divided into two categ(
before the PUC granted
in part UP & L'sinotiOl
Order No. 13550, and th
der No. 13550. Under n
the Public Utilities Law
there would result as
period differing rules of
aside on appeal and thm
PUC on its own motion
party. UP & L argues
lected during both peri.
basis of a surcharge be,
September 29, 1977, wa
peal. However, I.C. ~ 6
provides that (1) a mo.
sion shall establish the ra
find just and reasonable.
6. I.C. ~ 61-626 provides
An application for...
excuse any corporation
son from complying wi
der ... or operate in
postpone the enforcem
order made after any su
ing or changing the orij
the same force and effel
and shall not affect an
ment of any right arisi~
the original order.(EI
lothing is presumed
trisdiction. United
er Light Co.
1353 (1977); Lemhi
'l. States Tel. Tel.
2d 753 (1977);
Idaho Public Util-
daho 307, 379 P.
meral rule, adminis-
~e tribunals of limit-
their jurisdiction is
pon the statutes re-
!m and they cannot
elves, although they
her they have it. If
statutes are not met
)t had with the stat-
exists.
Power Co. v. Koote-
Alliance 99 Idaho
, 126 (1979).
es that:
nission . .. shall find
re unjust, unreason-
or preferential
, ...
. .. are insufficient
1 determine the just
:ient rates. .. to be
..,. "
(Emphasis
only prospective re-
the PUC authority to
or reductions to oth-
es in order to make
falls due to confisca-
0 statutory provision
examination of. I.C.
I 5 provides the back-
lat when the PUC grants
te increase shall not be
of application, even if it
ould have been just and
ate increase at the time
applications for rate de-
i 62-622 governing ratesection, when a utility
ease, the PUC decreases
: "
(PJending the hearing
uch rate. .. shall not go
lch hearing the commis-
UTAH POWER & LIGHT v. IDAHO PUBLIC UTIL.
Cite 88 107 Idaho 47
ground against which the PUC's authority does not operate to stay enforcement of the
must be examined. A common thread preceding order; and (2) an order following
weaves through these provisions: rates set rehearing cannot be retroactively applied.
by order are final unless stayed and are Under I.C. 9 61-626, there is no basis for a
determinative of all rights of the parties as surcharge upon modification of rates
long as they remain in effect without re- the PUC upon its own order following re-
gard to whether they are later altered or hearing. If we were to follow UP & L's
amended on rehearing or altered or amend- interpretation of the law, no surcharge
ed after being set aside on appeal. These would be permissible on the PUC's own
provisions provide that rates are only to amendment of rates but a surcharge would
have prospective effect. A holding by this be permissible when the original or~ was
Court that the PUC has authority to grant set aside on appeal. Absent more per-
utilities surcharges to make up past defi- suasive reasoning than is here presented
cits would conflict with the spirit, if not we will not read into the Public Utilities
with the express terms, of these provisions. Law a double standard for obtaining relief
The potential havoc that would be one which would give broader relief to a
wreaked in this intricate statutory scheme utility on appeal to this Court than would
is evidenced by the result which would be be permitted on rehearing by the PUC it-
reached were this Court to permit sur- self.
charges. For the purpose of this argu-
ment, the time period here at issue when
Order No. 13448 was in effect, from Sep-
tember 29~ 1977, to March 16, 1978, will be
divided into two categories: that period
before the PUC granted in part and denied
in part UP & L's motion for rehearing by
Order No. 13550, and that period after Or-
der No. 13550. Under the interpretation of
the Public Utilities Law urged by UP & L,
there would result as to the first time
period differing rules of law for orders set
aside on appeal and those set aside by the
PUC on its own motion or on motion of a
party. UP & L argues that the rates col-
lected during both periods should be the
basis of a surcharge because the order of
September 29, 1977, was set aside on ap-
peal. However, I.C. 9 61-6266 specifically
provides that (1) a motion for rehearing
sion shall establish the rates. .. which it shall
find just and reasonable."
6. I.C. ~ 61-626 provides in part that:
An application for. .. a rehearing shall not
excuse any corporation, public utility or per-
son from complying with or obeying any or-
der .,. or operate in any manner, to stay or
postpone the enforcement thereof....
order made after any such rehearing, abrogat-
ing or changing the original order, shall have
the same force and effect as an original order,
and shall not affect any right or the enforce-
ment of any right arising from or by virtue of
the original order." (Emphasis added.
C. ORDERS SET ASIDE ON APPEAL
UP & L argues that I.C. 99 61-624 and
61-629 give the PUC the authority to grant
monetary relief to a utility when a PUC
order is set aside by this Court on appeal.
At the time relevant to this appeal I.C.
9 61-629 provided in part:
Upon the hearing the Supreme Court
shall enter judgment, either affirming or
setting aside the order of the commis-
sion. In case the order of the commis-
sion is set aside the commission, upon its
own motion or upon motion of any of the
parties may alter or amend the order
appealed from to meet the objections of
the court in the manner prescribed in
section 61-624.(Emphasis added.) 7
7. I.C. ~ 61-629 was amended in 1981 to provide
in part:
Upon the hearing the Supreme Court shall
enter judgment, either affirming or setting
aside or setting aside in part the order of the
commission. In case the order of the com-
mission is set aside or set aside in part, the
commission upon its own motion or upon
motion of any of the parties, may alter or
amend the order appealed from to meet the
objections of the court in the manner pre-
scribed in section 61-624, Idaho Code."
1981 Sess.Laws ch. 129, ~ I, p. 217.
All references to I.c. 9 61-629 in this opinion
are to that statute as it was in effect prior to its
amendment in 1981.
107 IDAHO REPORTS UTAH I
This provision permits the PUC to "alter
or amend the order appealed from" but
does not permit the PUC to alter or amend
any other order, or to make any new order
not within the purview of the Court's di-
rections on remand. UP & L's petition, in
addition to requesting that Order No.
13448, which had since been superseded by
intervening PUC orders, be amended, also
in effect, requested the PUC to amend
whatever rate order was then in effect in
order to grant UP & L a surcharge. The
relief requested by UP & L would not be
the altering or amending of Order No.
13448 to meet the objections of the Court
as set forth in UP L I, supra but would
amount to the imposition of a surcharge
which simply is not related to an amend-
ment of Order No. 13448.
UP & L argues that I.C. 9 61-629 would
lose its meaning and effect if it were con-
cluded that no additional monetary awards
could be collected as a result of an altered
or amended order. It argues that the only
way the amendment of the PUC's order to
increase a rate base and rate of return to
meet the Supreme Court's objections there-
to can have any real meaning or practical
effect is by allowing the collection of the
additional revenue which would have
8. In fact, such an order would have been highly
unusual in light of representations made to this
Court during oral argument of UP L I
counsel for UP & L that:
JUSTICE BAKES: . .. What, if anything,
could be done-in your view-how then from
the mechanic s purely point of view-how
would any such remedies be actually inter-
preted or carried out in terms of dollars to
Utah Power? Would there be anything more
( than a personal but nonmonetary victory on
their part?
MR. MERRILL: Well, I think it would
considerably more than a-just a personal
victory on their part. It would not as far as I
can determine as a practical matter give one
dollar more to Utah Power and Light because
they have had two rate increases and tomor-
row we start the final hearings on the third
request for a rate increase since this one was
granted. If it goes back, if this order is over-
turned and it goes back, obviously the only
course open would be a surcharge. Mr. Seeds
in his testimony recommended a surcharge.
But, I-my-frankly, and I can speak for the
Company, they don t feel that is very appropri-
ate. The basic purpose then because we are
flowed to it had there been a proper Order
No. 13448 in the first instance.
First, it must be noted that this Court in
UP L I, supra did not order the PUC to
alter or amend its order of September 29,
1977, nor did it order the PUC to grant UP
& L a surcharge or other monetary relief.
In fact, to do so was not within the range
of our statutory prerogatives.I.C. 9 61-
629 provided that "the Supreme Court shall
enter judgment either affirming or set-
tzng aside the order of the commission.
The Court's direction to the PUC in UP
L I was that provided by statute: "The
order of the Commission is set aside." 102
Idaho at 285, 629 P.2d at 681 (1981).
Additionally, I.C. 9 6..
manner in which the P1.
amend the order appeale,
to I.C. 9 61-629. This
the PUC to amend or al
prospective manner only.
shall. .. have the same
provided for original ord
i.e., prospective effect on
See I.C. 9 61-502. Ther'
the PUC allowing UP ~
rate base and its rate of
of a prospective nature.
statute would be circumv
that would allow utilitie
charge to make up past)
the premise that custon
ing surcharged prospectSecond, it is not for this Court to imply a
term in the statute allowing the PUC to
grant a surcharge when the legislature has
not so provided, and this is especially so
where the legislature has provided a means
for obtaining monetary relief, i., compli-
ance with the statutory stay and bond pro-
cedures. UP & L will not be, heard to
complain to this Court that it has no ade-
quate remedy when a procedure has been
specifically provided to obtain relief with
which the utility has made no endeavor to
comply.
D. REQUIREMENT
AND INDIVIDUAL
If this Court were t(
arguments and permit
surcharges on rehearir
afforded non-petitionin
99 61-634
, -
637 and -
dered incomplete and a
I.C. 9 61-634 provide;
staying or suspending 3
not become effective
bond has been executec
I.C. 9 61-637 which pre
In case the order
commission is staye(
order of the court sh:
tive until a suspend
have been execute(
amount and secur
prompt payment, by
for the review, of all
the delay in the enfo
or decision of the co
said order or decisi(
court. .. shall also
public utility affect
denied all of those other rights the only pur-
pose on an appeal as I see it against the acts of
the Public Utilities Commission is to establish
principle, to establish law to establish the
rules that they have to follow to protect us
the future. Really, all we can ask for is pro-
tection on future principle, future methods of
how to handle rate cases, and future rights of
the Company. The dollars, 1 don t see how
we can get."
Transcription of Portion of Oral Argument
Heard on March 3, 1980, in Pocatello, Idaho.
Utah Power Light Co. v. Idaho Public Utili-
ties Commission, 102 Idaho 282, 629 P.2d 678
(emphasis added).
9. UP & L argues that this Court should autho-
rize the use of surcharges by the PUC because
the PUC has granted surcharges to utilities on
several occasions in the past. We intimate no
views as to whether the relief afforded by the
PUC to other utilities in the past constituted
surcharges. Actions taken by the PUC in the
past are not now before this Court and cannot
control our determination of the legality of their
present refusal to grant UP & L a surcharge.
Whatever the PUC's actions have been in the
past, it now has notic
,"rcharges in the futuro
10. I.C. 9 61-624 provid
The commission ma
lice to the public u'
opportunity to be h
!re been a proper Order
~st instance.
noted that this Court in
id not order the PUC to
order of September 29
!r the PUC to grant UP
. other monetary relief.
LS not within the range
erogatives.I.C. 9 61-
he Supreme Court shall
ther affirming or set-
~r of the commission.
III to the PUC in UP
ided by statute: "The
;;sion is set aside." 102
2d at 681 (1981).
Dr this Court to imply a
! allowing the PUC to
Then the legislature has
Id this is especially so
e has provided a means
tary relief, Le., compli-
my stay and bond pro-
will not be heard to
urt that it has no ade-
a procedure has been
1 to obtain relief with
s made no endeavor to
other rights the only pur-
s I see it against the acts of
Commission i.5 to establi.5h
'i.5h law to establish the
~ to follow to protect us
all we can ask for is pro-
:inciple, future methods of
cases, and future rights of
~ dollars, I don t see how
ortion of Oral Argument
1980, in Pocatel\o, Idaho.
t Co. v. Idaho Public Utili-
12 Idaho 282, 629 P.2d 678
t this Court should autho-
arges by the PUC because
surcharges to utilities on
the past. We intimate no
the relief afforded by the
s in the past constituted
taken by the PUC in the
)re this Court and cannot
lion of the legality of their
ant UP & L a surcharge.
actions have been in the
UTAH POWER & LIGHT v. IDAHO PUBLIC UTIL.
Cite 88 107 Idaho 47
Additionally, I.C. 9 61-62410 limits the ... all sums of money which it may
manner in which the PUC "may alter or collect from any corporation or person in
amend the order appealed from" pursuant excess of the sum such corporation or
to I.C. 9 61-629. This provision permits person would have been compelled to pay
the PUC to amend or alter an order in a if the order or decision of the commission
prospective manner only. "Any order. . had not been stayed or suspended.
shall. .. have the same effect as is herein I.C. 9 61-638 requires an individual ac-
provided for original orders or decisions counting of all moneys paid by utility cus-
, prospective effect only. I.C. 9 61-624. tomers pursuant to a court order staying a
See I.C. 9 61-502. Therefore, an order by PUC order lowering utility rates pending
the PUC allowing UP & L to expand its the outcome of an appeal to this Court:
rate base and its rate of return can be only "In case the court stays or suspends any
of a prospective nature. The intent of the order or decision lowering any rate
, ...
statute would be circumvented by a holding the commission, upon the execution and
that would allow utilities to obtain a sur- approval of said suspending bond, shall
charge to make up past rate deficiencies on forthwith require the public utility af-
the premise that customers were only be- fected ... to keep such accounts verified
ing surcharged prospectively. by oath, as may in the judgment of the
. commission suffice to show the amounts
being charged or received by such public
utility, pending the review, in excess of
the charges allowed by the order or deci-
sion of the commission, together with the
ndmes and addresses of the corpora-
tions or persons to whom overcharges
will be refundable in case the charges
made by the public utility, pending the
review, be not sustained by the court. . . .
Upon the final decision by the court, all
moneys which the public utility may have
collected, pending the appeal in excess of
those authorized by such final decision
. . .
, shall be promptly paid to the corpo-
rations or persons entitled thereto. . .
. "
(Emphasis added.
These provisions reflect the legislative
intent to insure that there is established a
fund out of which persons or corporations
injured by the stay of a PUC order may be
recompensed. It is clear that the legisla-
ture envisioned protecting individual rate-
payers by providing that the higher rates
collected following a stay of a PUC order
be put aside and that if the petitioning
party does not prevail upon appeal those
D. REQUIREMENT OF STAY, BOND
AND INDIVIDUAL ACCOUNTING
If this Court were to accept UP & L'
arguments and permit the PUC to award
Burcharges on rehearing, the protections
afforded non-petitioning parties by I.C.
99 61-634
, -
637 and -638 would be ren-
dered incomplete and almost meaningless.
I.C. 9 61-634 provides that a court order
staying or suspending a PUC decision shall
not become effective until a suspending
bond has been executed in compliance with
l.C. 9 61-637 which provides that:
In case the order or decision of the
commission is stayed or suspended, the
order of the court shall not become effec-
tive until a suspending bond shall first
have been executed
...
sufficient in
amount and security to insure the
prompt payment, by the party petitioning
for the review, of all damages caused by
the delay in the enforcement of the order
or decision of the commission. .. in case
said order or decision is sustained. The
court. ., shall also by order direct the
public utility affected to pay into court
past, it now has notice that any granting of
surcharges in the future will be illegal.
10. I.c. 9 61-624 provides that:
The commission may at any time, upon no-
tice to the public utility affected, and after
opportunity to be heard as provided in the
case of complaints, rescind, alter or amend
any order or decision made by it. Any order
rescinding, altering or amending a prior order
or decision shall, when served upon the pub-
lic utility affected, have the same effect as is
herein provided for original orders or deci-
sions." (Emphasis added.
.I'
107 IDAHO REPORTS
rates will be refunded to the individual
ratepayers from whom collected. These
provisions do not treat utility ratepayers as
a fungible mass allowing utility ratepayers
of the year 1983 to be substituted for those
of the year 1978. As manifested by thisstatute, the legislature did not envision al-
lowing the ratepayers of any particular
year to be benefited or burdened by the
over or under collection of rates pendingappeal. Under UP & L's argument, a utili-
ty could sidestep the statutory require-ments of initially obtaining a stay of a PUC
order lowering the utility s requested rates;
of then posting a bond to set aside the
difference in the rates under the stay of
the PUC order and those under the PUC
order before stayed; of going through the
labor and cost of making an individual ac-
counting of the customers who might later
be entitled to refunds; and last of making
refunds to the individual customers over-
charged by a stay of a PUC order if that
order is later upheld by this-Court on re-
view. Under UP & L's argument, a utility
could circumvent this intricate statutory
scheme by merely filing an appeal with this
Court and then collecting a surcharge on
rehearing by the PUC. If the legislature
intended to give utilities the option, as UP& L contends, of either proceeding by way
of the stay and bond procedures or by way
of a surcharge surely it would have sostated. If it be that our assessment of the
statutory scheme is incorrect, the legisla-
ture is available to take appropriate action.
II.
(6) UP & L contends that the PUC
erred in refusing to hold hearings on the
merits of UP & L's petition subsequent to
and in response to this Court's decision in
UP 1, the PUC's refusal being based
upon its determination that it had no juris-
diction to order a surcharge: "It would be
purposeless for us to embark upon proceed-
ings to determine how Order No. 13448
should be altered or amended to meet the
objections of the Supreme Court of Idaho
stated in (UP L IJ.
UP & L cites this Court to Intermoun-tain Gas Co. v. Idaho Public Utilities
Commission 97 Idaho 113, 540 P.2d 775
(1975), for the proposition that the PUC isrequired to proceed upon a full hearingwhen a PUC order has been set aside bythis Court on appeal. We there stated:
(AJny order by the Commission compel-
ling Intermountain to discontinue its
business of the retail sale of gas appli-ances without a full hearing preceded by
notice cannot be upheld.
Id. at 130, 540 P.2d at 795.
UP & L misconstrues our statement in that
case. We merely stated that the PUC
could not affirmatively order Intermoun-
tain Gas Company to discontinue an al-legedly independent business without the
full benefit of a hearing. We did not say
that the PUC was required to hold hearings
in every instance whatsoever.
I.C. 9 61-629 governs appeals from or-
ders of the PUC and proceedings under-
taken after appeal. It provided, in perti-nent part:
Upon the hearing the Supreme Court
shall enter judgment, either affirming orsetting aside the order of the commis-
sion. In case the order of the commis-
sion is set aside the commission, upon. its
own motion or upon motion of any of the
parties may alter or amend the order
appealed from to meet the objections of
the court in the manner prescribed in
section 61-624, Idaho Code.(Emphasis
added.
Under this statute, it is the PUC which
initially determines whether to amend oralter a PUC order if an order is set asideby this Court. In a case such as the
present one where the PUC correctly held
that it did not have jurisdiction to grant the
requested relief of a surcharge, the PUCwas equally correct in declining to embark
on a fruitless course of proceedings.
Accordingly, we affirm.
DONALDSON, C., and OLIVER, J.(pro tern) concur.
UTAH
SHEPARD, Justice, di
This action arose in 19
Utah Power & Light
crease in its rates. The
a substantial portion of t
increase, and an appeal
lowed. Utah Power
Util. Comm '102 Idahc
(1981). Four members 0
in that opinion, holding
hy the commission were
able, and thus confiscatl
of that confiscation was
million dollars. The
mountain Gas Co. v. Ie
Comm '97 Idaho 113, 5.
wherein a unanimous COl
Bluefield Waterworks
Co. v. Public Service
Virginia 262 U.S. 679, I
(i78, 67 L.Ed. 1176 (1923)
The question in the
rates prescribed in the
der are confiscatory ~
yond legislative power.
not sufficient to yield
turn on the value of thE
the time it is being m
~ervice are unjust, unre
fiscatory, and their enf(
the public utility compa
in violation of the Fo
ment. This is so well :
ous decisions of this co
of the cases is scarcely
lermountain Gas Co.
Util. Comm ', supra
:;40 P.2d at 787.
Hence, it was held in
igllt v. Idaho Public U
pm, that the commissior
lionully confiscated the I
Power & Light. Upon re
milision, the utility petitiO!
!\fwe of a surcharge to reI
of which it had been de
mltlliion s previous order.
'1Otnrnission s order denyi
tho assertion that, althou~
LIght has sustained a s
l'tltlfil:lcation , it shall swat
:ourt to Intermoun-
ho Public Utilities
J 113, 540 P.2d 775
cion that the PUC is
lpon a full hearing
~s been set aside
We there stated:
Commission compel-to discontinue its
iii sale of gas appli-
hearing preceded by
leld.
at 795.
Jur statement in that
:ated that the PUC
ly order Intermoun-
:) discontinue an al-
msiness without the
ing. We did not say
tired to hold hearings
tsoever.
. ens appeals from or-
I proceedings under-
It provided, in perti-
the Supreme Court
It, either affirming or
Irder of the commis-
order of the commis-
commission, upon its
L motion of any of the
or amend the order
1eet the objections of
nanner prescribed in
ho Code.(Emphasis
it is the PUC which
II'hether to amend or
an order is set aside
a case such as the
Ie PUC correctly held
irisdiction to grant the
~ surcharge, the PUC
n declining to embark
of proceedings.
firm.
, and OLIVER, J.
UTAH POWER & LIGHT v. IDAHO PUBLIC UTIL.
SHEPARD, Justice, dissenting.
This action arose in 1976 when appeHant
Utah Power & Light applied for an in-
crease in its rates. The commission denied
a substantial portion of that requested rate
increase, and an appeal to this Court fol-
lowed. Utah Power Light v. Public
Util. Comm 102 Idaho 282, 629 P.2d 678
(1981). Four members of this Court joined
in that opinion, holding that the rates set
by the commission were unjust, unreason-
able, and thus confiscatory. The amount
of that confiscation was in excess of six
million dollars. The Court cited Inter-
mountain Gas Co. v. Idaho Public Util.
Comm 97 Idaho 113, 540 P.2d 775 (1975),
wherein a unanimous court, quoting from
Bluejield Waterworks Improvement
Co. v. Public Service Comm 'n of West
Virginia 262 U.S. 679, 690, 43 S.Ct. 675
678, 67 L.Ed. 1176 (1923), stated:
The question in the case is whether the
rates prescribed in the commission s or-
der are confiscatory and therefore be-
yond legislative power. Rates which are
not sufficient to yield a reasonable re-
turn on the value of the property used at
the time it is being used to render the
service are unjust, unreasonable and con-
fiscatory, and their enforcement deprives
the public utility company of its property
in violation of the Fourteenth Amend-
ment. This is so well settled by numer-
ous decisions of this court that citations
of the cases is scarcely necessary.In-
termountain Gas Co. v. Idaho Public
Util. Comm ', supra, 97 Idaho at 125,
540 P.2d at 787.
Hence, it was held in Utah Power
Light v. Idaho Public Util. Comm ', su-
pra that the commission had unconstitu-
tionally confiscated the property of Utah
Power & Light. Upon remand to the com-
mission, the utility petitioned for the allow-
ance of a surcharge to recover the moneys
of which it had been deprived by the com-
mission s previous order. Implicit in the
commission s order denying any relief is
the assertion that, although Utah Power &
Light has sustained a six million dollar
confiscation, it shall swallow its loss-cer-
Cite as 107 Idaho 47
tainly a strange application of constitution-
al principles. I deem it even more strange
that on appeal to this Court, exactly the
same conclusion is reached Utah Pow-
er & Light shaH swallow its loss.
In the 18 pages of the majority opinion
there is no consideration given to whether
as contended by the commission, a sur-
charge is illegal and beyond the jurisdiction
of the commission since it constitutes "ret-
roactive ratemaking.Although it is clear
that the commission in the past has itself
utilized surcharge rates, the majority, by
grand fiat, states
, "
Whatever the PUC'
actions have been in the past, it now has
notice that any granting of surcharges in
the future will be illegaL" Not. a scrap of
authority is cited for such statement, nor is
the reader afforded any rationale therefor.
The actions of the author of the majority
opinion can perhaps be understood and ac-
cepted in view of his dissenting language
when the cause was originally before the
court:
Rate-making decisions are properly to
be made either by the legislature or by
the Commission which the legislature
created for that very purpose. To those
who are dissatisfied with the Commis-
sion s decision, other than under I.C. 61-
629 it seems to me that any petition
for redress should be made to the legis-
lature itself" Utah Power Light v.
Idaho Public Util. Comm ', supra, 102
Idaho at 295, 629 P.2d at 691.
As to the remaining members of the major-
ity, I can only speculate and wonder as to
this unexplained deviation from their origi-
nal positions.
The argument against the imposition of a
surcharge in this case is two-pronged: that
the commission has no jurisdiction to ap-
prove such a surcharge, and that to do so
would in effect be retroactive ratemaking.
As to the first prong, the commission clear-
ly has jurisdiction, in that the surcharge is
a rate and the setting of rates is statutorily
within the exclusive jurisdiction of the com-
mission. I.C. 99 61-502, 61-503. As was
stated by this Court in Washington Water
Power Co. v. Kootenai Environmental Al-
107 IDAHO REPORTS UTAH
liance, 99 Idaho 875, 879-880, 591 P.
122, 126-127 (1979):
(WJhile jurisdiction of the Commission
is to be strictly construed once jurisdic-
tion is clear the Commission is allowed
all power necessary to effectuate its pur-
pose. 'Every power expressly granted
or fairly to be implied from the language
used, where necessary to enable the
Commission to exercise the powers ex-
pressly granted should be afforded.'
United States v. Utah Power Light
Co., supra 98 Idaho at 667, 570 P.
1353. ..
The statutes reflect the legislative
grant of authority to the Commission to
deal broadly with existing and future
rates, rates schedules and contracts af-
fecting the rates."
In view of the commission s assertions of
jurisdiction broad enough to encompass
regulation of political mailings (see Wash-
ington Water Power Co. v. Kootenai En-
vironmental Alliance, supra); the regu-
lation of credit cards (see Lemhi Telephone
Co. v. Mountain States Tel. Tel. Co.
Idaho 692, 571 P.2d 753 (1977)); the forfei-
ture of water rights (see Idaho Power Co.
v. State of Idaho 104 Idaho 575, 661 P.
741 (1983)); the forced discontinuance of
appliance sales (see Intermountain Gas
Co. v. Idaho Public Util.Comm 97 Ida-
ho 113, 540 P.2d 775 (1975)); and the rate
of return which may be earned by a non-
utility affiliate (see Washington Water
Power Co. v. Idaho Public Util. Comm '
105 Idaho 276, 668 P.2d 1007 (1983)), the
plaintive plea of the commission, affirmed
by this Court, can be characterized as noth-
ing but ludicrous.
As to the assertion that a surcharge con-
stitutes retroactive ratemaking, it is indeed
a subject of substantial debate. However
the majority favors us with no authority,
pro or con, but merely gives us its cryptic
fiat. It was stated in Petition of Allied
Power Light Co.133 Vt. 586, 350 A.
360, at 364 (1975), that a utility should be
allowed to recoup rate increases forestalled
by lengthy litigation, because "(tJo hold
otherwise would be both unfair and con-
trary to the policy in these cases that de-
clares in a utility a right to those rates
which are determined to be just and reason-
able, and permit a fair return." In the
instant case a grant of a surcharge is the
same as a final order treating the original
request, rather than being a retroactive
mechanism for imposing charges. Other
jurisdictions have ruled such a surcharge to
be permissible. Wisconsin s Environmen-
tal Decade, Inc. v. Public Servo Comm '
of Wisconsin 98 Wis.2d 682, 298 N.
205 (Wis.App.1980); California Mfrs.
Ass v. P.u.C.24 Ca!.3d 251, 155 Ca!.
Rptr. 664, 595 P.2d 98 (1979); Potamac
Electric Power Co. v. Public Servo
Comm '380 A.2d 126 (D.App.1977), va-
cated on other grounds, 402 A.2d 14 cert.
denied 444 U.S. 926, 100 S.Ct. 265, 62
Ed.2d 182 (1979); Duquesne Light Co. v.
Pa. Pub. Util. Comm '31 Pa.Cmwlth.
118, 376 A.2d 668, 670 (1977); Petition of
Allied Power Light Co.133 Vt. 586, 350
2d 360 (1975); see generally Howe Re-
coupment: an Experiment in Vermont
109 Pub.Uti!.Fort. 58 (May 27, 1982); Rate
Recoupment Authorized 108 Pub.Uti!.
Fort. 48 (Sept. 10, 1981); Electric Utility
Emergency Surcharge Granted, 106 Pub.
Uti!. Fort. 55 (July 31, 1980); The Problem
of Retroactive Rates 105 Pub.Uti!.Fort. 63
(June 19, 1980).
The essence of the majority opinion is
that, since Utah Power & Light did not
follow procedural niceties which, for the
first time in today s ruling, are deemed the
exclusive avenue to avoid confiscation, the
utility must suffer the loss. Even assum-
ing that such argument is worthy of con-
sideration in view of constitutional re-
straints, the majority s opinion is neverthe-
less seriously flawed. LC. 9 61-635 is, by
its express language, permissive rather
than mandatory, and despite the linguistic
legerdemain of the majority, the word
may" in that statute cannot somehow mi-
raculously be turned into "must." The ma-
jority cites, as support for its holding, Joy
v. Winstead 70 Idaho 232, 215 P.2d 291
(1950). Joy v. Winstead is clearly distin-
guishable from the inst
the most myopic misrea(
guidance here. In Joy
sought from and denied
ties Commission. The (
court sought and gai
against the Public Ut
which would permit co
rate increase sought.
was sought in the SuJ
lenging the district cour
enjoin. In Joy, therefor
by the district court
imposition of the lower
mission. Hence, anyth
ion of the Court might
ing a situation involvir
of a stay is, at best, di(
the decision. The caSE
the proposition that th
jurisdiction to grant thE
lIothing else, the major
~tartling, considering
l~nce to the protectio
rights, which referenci
cause of the commissi(
process rights in the se
rates.
The majority opinion
the express language
'i 111-635, that the u1
~afeguarded by the eJ
to request, and to pos
by the appellate court
order. The majority r,
the issuance of such
ionary with the revi
mandatory upon the
of impending irrepar~
Iltility s interests. Th
,,~sumes, of course
always recognize the
lIId that it will neve)
'Ilay but then later r.
the merits. Does thE
III every rate setting
this Court, upon ap:
\lllomatically issue r
IIlPntation of the ratE
\ion'! if so, such wi
change from the pra(
pllblic utility law in
both unfair and con-
in these cases that de-
i right to those rates
d to be just and reason-
fair return.In the
; of a surcharge is the
~r treating the original
n being a retroactive
osing charges. Other
led such a surcharge to
consin s Environmen-
Public Servo Comm
is.2d 682, 298 N.
);
California Mfrs.
, Ca!.3d 251, 155 Cal.
1 98 (1979); Potamac
70. v. Public Servo
L26 (D.App.1977), va-
;nds 402 A.2d 14 cert.
, 100 S.Ct. 265, 62
Duquesne Light Co. v.
rnm '31 Pa.Cmwlth.
i70 (1977); Petition of
Co.133 Vt. 586, 350
generally Howe Re-
'eriment in Vermont
~ (May 27, 1982); Rate
orized 108 Pub.Uti!.
L981); Electric Utility
rue Granted, 106 Pub.
, 1980); The Problem
, 105 Pub.Util.Fort. 63
he majority opinion is
)wer & Light did not
iceties which, for the
ruling, are deemed the
avoid confiscation, the
;he loss. Even assum-
nent is worthy of con-of constitutional re-
opinion is neverthe-
1. I.C. 9 61-635 is, by
, permissive rather
:l despite the linguistic
! majority, the word
te cannot somehow mi-
into "must." The ma-
)rt for its holding, Joy
Lho 232, 215 P.2d 291
stead is clearly distin-
UTAH POWER & LIGHT v. IDAHO PUBLIC UTIL.
Cite as 107 Idaho 47
~uishable from the instant case, and only In brief, it is my view that the rates set
the most myopic misreading of it gives any by the commission are confiscatory and in
~uidance here. In Joy, a rate had been violation of the constitutional rights of
lIought from and denied by the Public Utili- Utah Power & Light. This Court, in spite
lies Commission. The company in district of its fine record of concern for constitu-
court sought and gained an injunction tional rights in every other area of the law
against the Public Utilities Commission announces that it must stand helplessly by
which would permit collection of the full because of obscure, ambiguous procedural
rate increase sought. A writ of prohibition nuances. I cannot agree.
was sought in the Supreme Court, chal- The majority s result is particularly diffi-~g!ng the district court's jurisdictio~ to so
cult to understand in view of Frizzell V.enjom. I
~y,
therefore, ~ stay had. lssu~d Swafford 104 Idaho 823, 663 P.2d 1125~y th~, district court agamst the mterlm (1983), wherein the Court held unconstitu-
ImposItIon of the lower rates by the com- posteIOna a reqUlremen a a on
miSSIon. ence, anyt mg w IC t e opm- to effectuate an appeal. I would agam set
IOn 0 t ourt mlg ave lmp le regar -
, .
aside the order of the commlSSlon and re-mg a sltuatlOn mvolvmg the non-lssuance man Wit c ear ms ruc Ions a a mpo-of a stay IS, at best, dicta not necessary to tabl
. .
rary surc arge e es IS e sucthe decIsion. The case stands merely for amount and for such period of tIme as willt e proposl IOn IS rlc cour
. .
ted allow the utility to recoup lts loss.JUriS IC IOn 0 gran e reques s
nothing else, the majority citation of Joy
startling, considering Joy repeated refer-
ence to the protection of constitutional
rights, which reference was necessary be-
cause of the commission s violation of due
process rights in the setting of confiscatory
rates.
The majority opinion argues, contrary to
the express language and spirit of I.C.
9 61-635, that the utility s interests are
safeguarded by the existence of the right
to request, and to possibly receive, a stay
by the appellate court of the commission
order. The majority relies on the idea that
the issuance of such a stay is not discre-
tionary with the reviewing court, but is
mandatory upon the utility s demonstration
of impending irreparable damages to the
utility s interests. The majority s analysis
assumes, of course, that this Court will
always recognize the propriety of a stay,
and that it will never erroneously deny a
stay but then later rule for the utility on
the merits. Does the majority imply that
in every rate setting matter appealed to
this Court, upon application a stay will
automatically issue restraining the imple-
mentation of the rates set by the commis-
sion? If so, such will indeed be a drastic
change from the practice and procedure of
public utility law in the State of Idaho.
BAKES, J., concurs.
BAKES, Justice, dissenting:
The majority in this case is in effect
ruling that Utah Power & Light's only re-
course from an adverse PUC order, which
denies them the right to collect fees to
which they are entitled and thus confis-
cates their property, is for Utah Power &
Light to request a stay of the order pend-
ing appeal and post a bond. The Court
holds that if Utah Power & Light fails to
post such a bond pending appeal, then even
though the utility s property has been ef-
fectively confiscated there is no hope of
recovery because of the failure to file such
an appeal bond. By denying the utility a
right to impose a surcharge, the majority
makes the filing of a bond mandatory.
This Court-imposed requirement of a man-
datory bond pending appeal is both con-
trary to the statute, which uses the permis-
sive word "may , not the mandatory word
shall", and is in conflict with this Court'
recent opinion in Frizzell V. Swafford 104
Idaho 823, 663 P.2d 1125 (1983). In that
case we struck down the requirement that
a party file an appeal bond, saying that the
requirement of such a bond is a violation of
due process.
107 IDAHO REPORTS
In Frizzell we noted that "(a)ppellant
contended the execution procedure and the
requirements of I.R.P. 81(1) and LC.
99 1-2311 through -2313, which condition a
right to appeal on payment of fees and a
bond, were an unconstitutional taking of
property without due process.In this
case the majority upholds a mandatorily
required appeal bond, seemingly ignoring
its opinion in Frizzell. The majority in
Frizzell noted the mandatory nature of the
bond, stating:
A party in a small claims action may
appeal a judgment by filing a notice of
appeal within thirty days. According to
I.R.P. 81(m), the party appealing may
prevent execution on the judgment
against him by filing a bond in the
amount of the judgment at the time of
filing a notice of appeal. However, con-
trary to the implication of LR.C.P. 81(m),
the bond to secure payment of judgment
(supersedeas bond) is not optional (to pre-
vent execution pending appeal) but man-
datory.Id. at 826, 663 P.2d 1125 (foot-
notes omitted).
In the present case the majority has ruled
that the payment of a bond to "secure
payment of judgment" (secure repayment
of rates) is not optional, but mandatory,
and the only way a party (public utility)
appealing may prevent "execution on the
judgment against him" is by the filing of a
bond in the amount of the "judgment." In
Frizzell we ruled that this procedure was a
violation of due process. The majority is
inconsistent in upholding the bond proce-
dure in this case, while striking it down in
Frizzell,
Treating the appellant in this case, a
public utility, differently from a small
claims appellant merely because of its sta-
tus, or the size of its assets, or the nature
of the appeal, is a violation of equal protec-
tion. There is no indication of a rational
basis for the different treatment of these
two appellants. Thus, the majority is dou-
bly incorrect in first refusing to acknowl-
edge that the legislature did not intend the
bond procedure to be mandatory and, sec-
ondly, by refusing to apply the same due
process standard to that mandatory bond
requirement as it did in the Frizzell case.
685 P.
Jack W. FOSTER, Bet!
Scott Baldwin and Dt
win, Plaintiffs, Respt
pellants,
Dave JOHNSTONE, ir
an agent for the Prl
Company. Prudenti
Casualty Insurance I
ration, The Prudenti
pany of America,
Does III, IV and V,
lants, Cross-Respom:
No. 14'
Supreme Cour
June 7,
Rehearing Denied
Insureds brought:
er and its sales agent a
incurred by insured wi
with another vehicle v
ther s truck. The Tn
Court, Canyon Count:
tick, J., entered judgn
in favor of insureds (
under policy and estoI
its agent appealed. '
Huntley, J., held tha
policy as to nonowne
for regular use of in:
owned automobile ml
anyone engaged in an
tion of insured were
matter of law; (2) E
were unambiguous, tJ
mitting testimony of
1.\1:\1 intentions at tin
was entered into as e
'\\leh terms; (3) esto)
(ailed to separately
",,'oppel and failed
.,\iance" misrepreseI
".'versal of verdict b
I) aKent's represe
IIllnee on such repre
,,"lioness of reliance
filet for fact finder.