Summary
In Monadnock Mills, for example, the service provider and each of the service recipients enjoyed a lessor-lessee relationship.
Summary of this case from Appeal of ZimmermanOpinion
No. 3432.
Decided June 25, 1943.
Except as modified by statute it is the general rule that unless an individual or corporation has publicly professed a readiness to perform a particular service no duty exists to render that service to all who request it. Where a corporation's charter does not authorize it to engage in the business of a public utility nor confer upon it the power of eminent domain and it has never operated any plant or equipment for the manufacture of power for the public generally nor has ever furnished steam to other corporations or individuals except voluntarily and at prices fixed by special contract, such corporation is not a public utility within the meaning of Revised Laws, Title XXV and hence is not obligated to furnish steam nor subject to the jurisdiction of the Public Service Commission. The dedication of property to a public service is never presumed without evidence of an unequivocal intention. The furnishing of power to a public utility recognizes no duty as regards the public generally and no duty to such under a contract utility beyond such contractual provisions.
PETITION, to the Public Service Commission, alleging that the defendant is a public utility and praying that the Commission require it to furnish steam to the plaintiff at reasonable rates. The facts having been agreed to by the parties, the Commission has transferred for determination, under the provisions of section 20 of chapter 287 of the Revised Laws, the question, "Is Monadnock Mills, Inc., a public utility within the meaning of the statutes relating to public utilities (Title XXV, Revised Laws) and subject to the jurisdiction of the Public Service Commission?"
The material facts may be summarized as follows:
The defendant was incorporated in 1831 under the name Sugar River Manufacturing Company. It was authorized to manufacture cotton and woolen goods "together with such other branches of manufacture and trade as are, or from time to time may be necessarily connected therewith." 10 N.H. Laws, 278. In 1859 it erected a plant for the production of gas for its own consumption.
The plaintiff was incorporated in 1860 "to carry on the manufacture, sale and distribution of gas, for the purpose of lighting the streets, factories, and all other buildings in the village of said Claremont." Laws 1860, c. 2423, s. 2.
The defendant's capacity for producing gas "was greater than necessary for its own use," and by agreement dated May 1, 1860, it undertook the sale and delivery of gas to the plaintiff, "reserving the right to supply its own uses in preference." This arrangement was continued until 1905, when the plaintiff was reorganized. See Laws 1905, c. 171. At that time the defendant conveyed to the plaintiff its entire gas plant and appurtenances, and the plaintiff in consideration therefor issued to the defendant all its capital stock "except the qualifying shares of directors."
In 1911 the defendant constructed a steam boiler plant, which was connected with the plaintiff's gas-manufacturing equipment. This steam plant "was used to heat the mill buildings, to furnish steam required in processing textiles" made by the defendant, and to furnish all steam required by the plaintiff in the production of gas. In 1932 the defendant disposed of all its stock in the plaintiff company, sold its machinery (which was removed from the mills), and rented the boiler plant to the plaintiff.
In 1935 the defendant resumed operation of the boiler plant having leased one of its buildings to a shoe-manufacturing corporation with a covenant to supply the building with steam. It also furnished steam to the plaintiff as before. In 1941 it leased another of its buildings to a mercantile establishment under a lease which required it to "furnish heat to the demised premises."
The defendant has never solicited the sale of steam by advertisement or otherwise and, on several occasions, has refused to furnish steam to a local laundry. It has never filed any rates or reports with the Public Service Commission, nor has it sought or obtained any franchise to engage in business as a steam public utility. On January 8, 1943, it notified the plaintiff that it proposed to discontinue the service it had been rendering.
Robert W. Upton and Laurence I. Duncan (Mr. Duncan orally), for the plaintiff.
Demond, Sulloway, Piper Jones (Mr. Franklin Hollis orally), for the defendant.
Service to the public without discrimination is one of the distinguishing characteristics of a public utility (Dover c. Ry. Co. v. Wentworth, 84 N.H. 258, 260), and, except as modified by statute, it is the general rule that unless a person has publicly professed his readiness to perform a particular service he is under no duty to render that service to all who request it. Faucher v. Wilson, 68 N.H. 338, 339, and cases cited; Milford Quarry c. Co. v. Railroad, 84 N.H. 407, 410, 411. The term "public utility" is defined by statute in this jurisdiction to include every corporation "owning, operating or managing any plant or equipment or any part of the same for the conveyance of telephone or telegraph messages or for the manufacture or furnishing of light, heat, power or water for the public, or in the generation, transmission or sale of electricity ultimately sold to the public." R. L., c. 285, s. 4. Various other enterprises embraced in the statutory definition have no relation to the present controversy.
The defendant's charter does not authorize it to engage in the business of a public utility nor confer upon it the power of eminent domain. The defendant does not operate "any plant or equipment or any part of the same" for the manufacture of gas "for the public." The steam which it generates is furnished the plaintiff company, on which alone devolves the duty of public service. The defendant has never undertaken generally to furnish steam at reasonable rates to all who apply therefor, but such service as it may have rendered has been "purely voluntary" (Milford Quarry c. Co. v. Railroad, 84 N.H. 407, 411) and "at prices fixed in each case by special contract" (Faucher v. Wilson, 68 N.H. 338, 339).
The statutory provision relating to "the generation, transmission or sale of electricity ultimately sold to the public" having reference to electricity only, is not to be inferentially extended to the other services subject to Commission control. See Vidal v. Errol, 86 N.H. 1, 6; Howe v. Howe, 87 N.H. 338, 341; State v. Railroad, 89 N.H. 59, 61; State v. Goonan, 89 N.H. 528, 529; Bowdler v. Company, 90 N.H. 68, 72. But even if it were so extended, it would not apply to the present situation, since the steam which the defendant generates is not ultimately sold to the public and no gas is manufactured by the defendant at all.
Many of the decisions on which the plaintiff relies depend upon the interpretation of particular statutes and are concerned with companies engaged in the transportation and sale of natural gas for resale to the public. In none of these cases are the material facts at all analogous to those here existing.
Nor do the circumstances of the present case bear out the plaintiff's contention that the defendant by "its participation in the manufacture of gas" dedicated its property to a public use. Until 1932 it was engaged in the manufacture of textiles. It furnished no gas to the plaintiff after 1905, and the agreement under which it had supplied gas up to that time contained a reservation of the right to satisfy its own requirements first. The steam plant constructed in 1911 served the defendant's own needs as well as those of the plaintiff, and there is nothing in the agreed facts which warrants the inference that in leasing the plant to the plaintiff in 1932 or in resuming operations in 1935 the defendant recognized an "obligation to Claremont Gas Light Company and the gas-consuming public." The dedication of property to a public service "is never presumed without evidence of unequivocal intention." 43 Am. Jur. 572. See also, Wason v. Nashua, 85 N.H. 192, 200; Whitcher v. State, 87 N.H. 405, 412. No such intention is here disclosed.
The question transferred for decision is answered in the negative.
Petition dismissed.
All concurred.