Opinion
No. 4743.
Argued April 7, 1959.
Decided April 21, 1959.
1. In an appeal from an order of the Public Utilities Commission fixing current rates of an electric utility as temporary rates pending a determination of permanent rates, and in appeals from an order fixing such permanent rates, a motion seeking an order directing the utility to produce evidence alleged to indicate reversal of a downward trend in the utility's "operating results" after close of hearings before the Commission was denied where the evidence sought was not so significant as to warrant remand to the Commission for consideration of the evidence.
MOTION, filed by the State on March 24, 1959, in pending appeals from orders of the Public Utilities Commission, one of which is number 4708, an appeal by the State from an order dated September 30, 1958, fixing temporary rates pending a determination of permanent rates; and the other number 4731, appeals by all parties from an order dated February 4, 1959, fixing permanent rates in the same proceedings.
The motion seeks an order of this court requiring Public Service Company of New Hampshire "to produce evidence of pro-formed operating results for the calendar year 1958 and the twelve months ending January 31, 1959." It asks that such evidence take the form of several exhibits received in the pending cases which consisted of consolidated income statements for various successive twelve-month periods, terminating on month-end dates from May 31, 1958, to November 30, 1958, with pro forma adjustments and rates of return also shown.
Louis C. Wyman, Attorney General, Warren E. Waters, Deputy Attorney General and John N. Nassikas, Special Counsel (Mr. Nassikas orally), for the State, for the motion.
Sulloway, Hollis, Godfrey Soden (Mr. Hollis orally), for the companies, opposed.
The State's motion alleges that the data which it seeks to have produced should be received by this court in the temporary rate case because "recoupment under RSA 378:29 is limited to a reasonable rate of return as provided in RSA 378:27 over the period of the recoupment from October 1, 1958, through February 12, 1959." Its argument in support of this part of its motion revolves around questions of proper interpretation of statutory provisions relating to the amount which may be recouped under RSA 378:29.
However, determination of the amount of any recoupment to be allowed the companies has not yet been undertaken by the Commission, and obviously must await the outcome of the pending appeals. Consequently no issue pertaining to that question is presently before this court, and we are not on that account concerned with the results of the companies' operations following close of the hearings before the Commission.
The State's motion alleges that the evidence should be received in the permanent rate proceedings, because it will tend to show that "the short term trend of erosion in rate of return . . . through November 30, 1958 was [thereafter] reversed," and should therefore be available in order to permit compliance with the statutory standard of review established by RSA 541:13.
The State contends that the evidence should be received to aid in evaluation of the Commission's alleged failure to recognize the increasing availability of accrued federal income taxes, and the "magnitude of [its] error" in forecasting the companies' income requirements on the basis of earlier declines in net operating income during the recent "short-term" recession.
The companies assert that since the requested data would reflect only two additional months of operations, they could not when related to preceding twelve-month periods, operate to reverse the downward trend of earnings available for common stock shown to have occurred since May 31, 1958, which was the end of the test year used in fixing permanent rates. They submit that the requested evidence is not significant in evaluating the decision of the Commission as to permanent rates, and would not affect the conclusion reached by the Commission even if presented to it for consideration upon remand as provided by RSA 541:14.
The decision of February 4, 1959, demonstrates that the Commission could not have been oblivious to the possibility of improved operations following the recession, which the majority referred to as having "occurred during the test year." The evidence which the motion seeks to have produced does not appear to be so significant as to warrant a remand of the appeals to the Commission for its reception and consideration. Permanent rates are concededly made for the future upon forecasts which must necessarily recognize that conditions may later improve, deteriorate, or fluctuate. The reception of evidence in rate proceedings must at some time be brought to a close. For these reasons we conclude that justice does not require that the motion be granted.
Motion denied.