Opinion
No. 4962.
Argued August 10, 1961.
Decided September 14, 1961.
1. The authority of the Public Utilities Commission in proceedings before it to establish the current rates of a utility as temporary rates is conferred upon the Commission by statute authorizing it to "determine the just and reasonable or lawful rates . . . to be thereafter observed" by the utility (RSA 378:7) and to immediately fix reasonable temporary rates where the public interest so requires (Id., s. 27).
2. An order of the Public Utilities Commission in temporary rate proceedings fixing intrastate rates of a utility lower than those currently in effect but permitting the utility in the alternative to retain its current rates as temporary rates pending final determination of permanent rates upon its furnishing a bond guaranteeing a return to the ratepayer of any excess collected under the temporary order over the rates finally determined was within the purview of RSA 378:7, 27 and 30 and was held not to be erroneous, unjust or unreasonable.
3. While the rate-making authority of the Public Utilities Commission does not extend beyond expressed enactment or its fairly implied inferences its power to regulate rates is, in general, plenary.
APPEAL, under RSA ch. 541 from an order of the Public Utilities Commission dated June 9, 1961 establishing as temporary rates the current rates of New England Telephone Telegraph Company, pending the determination of final rates in a proceeding instituted by the Commission on March 16, 1961.
The order was entered after hearing upon a petition filed by the Attorney General and became effective on June 15, 1961, following the filing of a bond by the company conditioned upon repayment to subscribers of any sums collected under the temporary order in excess of what the rates as finally determined would have yielded if in effect for the period. The order provided that if such a bond were not filed, the effective temporary rates should be rates designed to effect a reduction of $663,630 in intrastate rates on an annual basis and calculated to yield a return of not over 6.4%.
The State moved for rehearing upon the ground that the Commission was without jurisdiction to require the parties to accept a bond as provided by the order, and upon the further ground that the "alternative order" for rates yielding a return of not over 6.4% was unreasonable and unlawful. The motion was denied on June 16, 1961, and the State appealed by petition dated June 28, 1961.
Gardner C. Turner, Attorney General and Frederic T. Greenhalge, Assistant Attorney General (Mr. Greenhalge orally), for the State.
McLane, Carleton, Graf, Greene Brown (Mr. Graf orally), for New England Telephone Telegraph Company.
John N. Nassikas, special counsel (by brief and orally), for the Public Utilities Commission.
Perkins Dowst for the International Brotherhood of Telephone Workers, Local 20, furnished no brief.
The statutory provisions appearing in RSA 378:27, 29 and 30 are products of the last two decades designed to protect the utility or the ratepayer, as the case may be, against losses by reason of temporary rates when permanent rates prove to be higher or lower than temporary rates. Sections 27 and 29, enacted in 1941, were designed to protect utilities against confiscatory rates and to permit recoupment of any deficiency in return suffered under a temporary order. Public Service Co. v. State, 102 N.H. 66, 68.
Section 30 was enacted in 1951 upon the recommendation of an interim legislative commission established in 1949, in an effort to afford comparable protection to ratepayers, should temporary rates prove to have been too high when permanent rates are established. In the words of the interim commission, section 30 was proposed "to provide for a filing of a bond . . . to guarantee a return to the rate payer of the difference between the amount earned by the temporary rate and the permanent rate if the permanent rate [when established] is less than the temporary rate . . . ." Report of the Interim Legislative Commission to Study Laws Regulating Public Utilities (1951) 53. The Legislature not only adopted the interim commission's proposal but also amended section 6 of the chapter to provide for a like bond to be filed when a utility places in effect a schedule of higher rates following a suspension of the effective date thereof pending investigation by the Commission. See RSA 378:6. New England Tel. Tel. Co. v. State, 97 N.H. 555, 556.
Sections 29 and 30 have since been regarded as particularizations of the comprehensive rate-making powers conferred upon the Commission in its early years (Laws 1911, c. 164, s. 11a; RSA 378:7) rather than as latter-day limitations upon those powers. The authority of the Commission to establish current rates as temporary rates has been considered well within its discretion to "determine the just and reasonable or lawful rates . . . to be thereafter observed" (RSA 378:7), and "if it be of the opinion that the public interest so requires [to] immediately fix . . . reasonable temporary rates." RSA 378:27; Public Service Co. v. State, 102 N.H. 66; New Eng. Tel. Co. v. State, 95 N.H. 515. See New England Tel. Tel. Company, 31 N.H. P. S.C. 337, 343.
The circumstances of the case before us do not fall within the precise authorization of section 30, since the "temporary rates . . . prescribed" are not "higher than those previously in effect," but the same. Yet the evidence upon which the Commission based the second paragraph of its order, providing for a reduction of rates below the current level in the event the company should not choose to file a bond, warranted a finding that permanent rates might well prove lower than current rates. Thus it could properly find that the occasion was one in which section 30 was intended to apply, falling within the purpose stated by the interim commission namely: "to guarantee a return to the rate payer of the difference . . . ." Cf. Chicopee Mfg. Co. v. Company, 97 N.H. 553.
The order from which the State appeals did not require the utility to furnish the bond in question. Intrastate rates lower than those currently in effect were fixed by the second paragraph of the order; but the preceding provisions permitted the utility to retain its current rates as temporary rates pending a final order, if it chose to file a bond. This it elected to do.
"We are of the opinion that there is nothing in the statute which precludes the acceptance of such a bond when voluntarily offered and that it should be accepted if it appears to be a reasonable way of protecting the public against the payment of rates which are subsequently adjudged to be unreasonable." New Eng. Tel. Co. v. State, 95 N.H. 58, 61.
The conditional provision of the first paragraph of the order was no abuse of the Commission's discretion to "fix . . . reasonable temporary rates" (RSA 378:27) and to "determine the just and reasonable or lawful rates . . . to be thereafter observed." RSA 378:7. It permitted continuance of the status quo in preference to a temporary change in rates followed by further changes when final rates should be established. See New England Tel. Tel. Co. v. State, 97 N.H. 555, 556, supra. At the same time it protected the ratepayers by means of the bond. As special counsel has pointed out: "The order . . . accomplishes the same result as if rates had been reduced . . . with a right to recoupment by the Company under RSA 378:29, if permanent rates were higher."
The order of the Commission was within the purview of RSA 378:7 and 27, supra (New Eng. Tel. Tel. Co. v. State, 98 N.H. 211, 219), and is not shown to be erroneous, unjust or unreasonable. RSA 541:13. The rate-making power of the Commission is to be distinguished from auxiliary powers which are more strictly limited. State v. N.H. Gas Elec. Co., 86 N.H. 16. While the authority of the Commission "does not extend beyond expressed enactment or its fairly implied inferences" (Petition of Boston Maine R.R., 82 N.H. 116), as was pointed out in State v. N.H. Gas Elec. Co., supra, 30, the authority of the Commission to regulate rates "is plenary save in a few specifically excepted instances." Lorenz v. Stearns, 85 N.H. 494, 506.
Appeal dismissed.
All concurred.