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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 r~c- (' ,- I \ " ~- n:::,jL.lt c.U r-~- ?!)" ')rY'f'11.! .... .. Ud. t,, , - y" /' 'i . " L' U I ill .' ;~.' ,. , Lvl,.iJliij;...J0U,1 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.