Emerald People's Utility District v. Pacific Power & Light Co.Emerald People's Utility District v. Pacific Power & Light Co.
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Emerald People‘s Utility District (Emerald) filed this action under
The trial court dismissed Emerald‘s complaint, holding that a people‘s utility district (PUD) may not take over an existing facility under
Interest in PUDs in 1930 culminated in the submission by initiative and adoption of
The problems with respect to private utilities at that time included
“[t]he financial scandals of utility holding and operating companies, the dissipation of assets of operating companies by their unregulated affiliates, [and] the failure of public utility rates to follow the fall of commodity prices during [the] years of economic distress [all of which] cast a shadow of ill-feeling upon the entire industry * * *.” Rooks and Booth, Current Problems of Public Utility Rate Regulation, 13 Or.L.Rev. 122, 122 (1934); see also Claire, Recent Utility Regulation in Oregon, 11 Or.L.Rev. 338, 340 (1932) (discussing Governor Meier‘s platform with respect to utilities).
The sponsors of the constitutional amendment envisioned not only local control over energy resources, but also inexpensive production of energy. Voters’ Pamphlet, November 4, 1930, p 51. What the sponsors envisioned is not always what the voters understood and intended, but in this case the publicity given PUDs with respect to the possibilities of local control and inexpensive production of energy, the overwhelming electoral support given PUDS, and the ill will directed at private utilities suggest that the voters intended these results in the creation of PUDs. The dual goals of local control and inexpensive production of energy could not be accomplished if PUDs had no choice but to duplicate existing hydroelectric facilities or to acquire such a facility at whatever price a utility demanded in contractual negotiations.
The strength of the voters’ conviction that PUDs were a preferable alternative to private utilities is evidenced by two factors. First, they chose to enact a constitutional amendment rather than a statute by initiative to accomplish their purposes; although the same method is prescribed for each, the former may be amended or repealed only by popular
“In the November election Meier received more than twice as many votes as the `regular’ Republican nominee, and thousands more than * * * all other candidates combined, notwithstanding the desperate [sic] fight waged against him by the power concerns and allied utilities. * * *
“Majorities in both houses of the legislature either were elected on the same program or have subsequently pledged themselves to support it, while the same
wave of protest against the private power interests carried Major General Charles H. Martin, retired, * * * into Congress from the overwhelmingly Republican district which includes Portland. The main plank of his platform was publicly owned hydroelectric power. * * * “* * *
“* * * Mr. Meier has just issued a public announcement to the effect that if the legislature attempts to mar the program in any single detail, he will go over their heads by calling a special election and placing the proposed legislation in its entirety directly before the people. That he will do just exactly that is not doubted by anyone who really knows him * * *.”
“(e) To exercise the power of eminent domain.
“(f) To acquire and hold real property and other property necessary to or incident to the business of such districts. “(g) To acquire, develop, and/or otherwise provide for a supply of water, water power and electric energy.”
The last paragraph of
“The legislative assembly shall and the people may provide any legislation, that may be necessary, in addition to existing laws, to carry out the provisions of this section.”
The legislature met in January 1931 and promptly passed two separate but related bills. Oregon Laws 1931, chapter 279, now ORS chapter 261, implemented
The passage of
The implementing legislation (now found in ORS chapter 261) provided for the establishment and operation of peoples’ utility districts, an entity theretofore not existent in Oregon, “to distribute, sell and/or otherwise dispose of water, water power and electric energy, within or without the [districts‘] territory.” Or. Laws 1931, ch. 279, §§ 1, 2, 29(d). This legislation was prepared by members of the Oregon State Grange. See 41 Op.Att‘y.Gen. 335, 344 (Or. 1981), citing Oregon Journal, pp 1, 16, January 12, 1931 (inaugural address of Governor Meier). It was signed by Governor Meier on March 6, 1931. Included in that legislation was section 29(d) and (e),
“(d) To acquire and hold real and other property necessary or incident to the business of such districts, within or without * * * the district; to acquire, develop, and/or otherwise provide for * * * water power, and electric energy; to distribute, sell and/or otherwise dispose of water, water power and electric energy * * *.
“(e) To exercise the power of eminent domain for the purpose of acquiring any property within or without the district, necessary for carrying out the provisions of this act. * * *”
The policy of ORS chapter 261 includes:
“* * * authorization for the establishment of people‘s utility districts to develop the water and energy resources of this state for the benefit of the people of
this state and to supply public utility service, including water, water power and electric energy for all uses and users.” ORS 261.007 .
In reviewing the powers given the new PUDs, the Court of Appeals rejected Emerald‘s claim that Oregon Laws 1931, chapter 279, granted PUDs authority to condemn a private utility‘s hydroelectric facility already devoted to public use, stating:
“The statutory authority is to condemn any property necessary for carrying out the provisions of the chapter, which is consistent with the authority to exercise the power of eminent domain. However, it is less broad than the constitutional authority to acquire (as distinguished from condemn) property `necessary or incident to’ the PUD‘s business. It is at best questionable whether the taking of an existing private utility‘s hydroelectric project already devoted to public use is necessary to carry out the provisions of the chapter, although it may be convenient or incident to carrying them out and although such facilities may be acquired by voluntary purchase. Given the rule that the power to condemn land already appropriated to public use must be in express terms, Little Nestucca Road Co. v. Tillamook Co., 31 Or 1, 48 P2d 465 (1897), we are not persuaded, without more, that
ORS 261.305(5) , either expressly or by necessary implication, grants PUDs authority to condemn existing hydroelectric facilities of private utilities.” 76 Or. App. at 587, 711 P.2d 179 (emphasis in original).
We disagree. The public mandate that generated the
As quoted earlier, Oregon Laws 1931, chapter 279, section 29(d), granted PUDS the “power * * * [t]o acquire * * * real and other property necessary or incident to the business of such districts, [and] * * * to acquire, develop, and/or otherwise provide for * * * water power and electric energy.” We read the next paragraph of section 29 to allow eminent domain as one method by which this acquisition power of PUDs can be exercised. Section 29(e) grants PUDs authority “[t]o exercise the power of eminent domain for the purpose of acquiring any property * * * necessary for carrying out the provisions of this act.” Paragraphs 29(d) and 29(e) should be read together.
When this is done, section 29 not only “clearly grants [PUDs] authority to acquire existing hydroelectric facilities, and electricity from them, by contract,” 41 Op. Att‘y.Gen. at 337, but also clearly grants PUDs the authority to acquire existing hydroelectric facilities by eminent domain. The mandate of the people and the warning of Governor Meier warranted no less. The 1931 legislature responded to the constitutional mandate. It enacted ORS chapter 261 which gives PUDs the necessary tools to “develop the water and energy resources of this state for the benefit of the people of this state and to supply public utility service, including water, water power and electric energy for all uses and users.”
Any lingering doubt is dispelled by reference to section 51 of chapter 279, codified as amended at
“Nothing herein contained shall authorize or be deemed to authorize or empower the board of directors of any district to interfere with or exercise any control over any existing utility owned and operated by any municipality in said district unless by consent of the city council of such municipality or the governing body of such municipally owned plant, when the control of said municipally owned plant is vested in a
governing body other than the city council or governing body of such municipality.”
That the legislature prohibited PUDs from condemning any “existing utility owned and operated by any municipality [without the] consent of the * * * governing body” strongly implies the authority to condemn the property of existing private utilities.
“The right of eminent domain is a dominant legislative power only called into exercise by the enactment of a valid statute, and when a party asserts a right to seize land already appropriated to public use, he must sustain his claim by producing a statute clearly conferring the asserted authority.” Id. at 5, 48 P. 465.
Little Nestucca recognized a general rule that when an entity with the delegated power of condemnation seeks to exercise such power with respect to property already devoted to public use, the delegated power must be stated “in express terms or must arise from necessary implication.” Id. at 6, 48 P. 465 (emphasis added); see also 1 Nichols, Eminent Domain 2-55 to 2-69, §§ 2.2 to 2.2[1] (3d ed rev 1985). In the present case, considering the specific nature of the 1930 constitutional amendments and the events of 1930 and 1931 described earlier, and the provisions of chapter 279, including section 51 quoted above, the power of PUDs to condemn existing hydroelectric facilities already producing power for public consumption arises by necessary implication. Any other construction would be contrary to the goals and purposes that the voters and the legislature sought to achieve by authorizing the creation of PUDs.
The Court of Appeals conclusion to the contrary was erroneous. Emerald, however, claims the right to take over the PP & L facility under the favorable provisions of section 21 of chapter 67, now ORS chapter 543. The result reached by the Court of Appeals must still be affirmed if that court‘s view of
Oregon Laws 1931, chapter 67, as noted earlier, was originally introduced at the behest of Governor Meier and was considered with the bill prepared by the Oregon State Grange. The bills thereafter went to the same legislative committees and were enacted at about the same time. Senate and House Journals 1931, pp. 434, 444, 543, 548. The governor‘s bill, Oregon Laws 1931, chapter 67, focused on the regulation of the development of the state‘s water resources and created the Hydroelectric Commission to preserve the state‘s water resources and to license their development. See
The Court of Appeals held that a PUD is not a “municipality” under
Chapter 279 of Oregon Laws 1931, now ORS chapter 261, is replete with sections that clearly discriminate between municipalities and PUDs. The legislature defined a PUD as “an incorporated people‘s utility district” and a municipality as “an incorporated city or town with a council or legislative body.” Or. Laws 1931, ch. 279, § 2, codified at
Section 12 began:
“Whenever the voters of a municipality or the governing body of such municipality and the voters of a parcel of territory desire to unite to form a utility district under the provisions of this act * * *.”
Section 13 provided in part:
“Whenever the voters of two or more municipalities, or the governing bodies thereof, wish to unite to form a utility district * * *.”
“In the formation of two or more municipalities into a utility district * * *.”
Section 16 began:
“Any municipality not included in a utility district * * *.”
Section 51, codified as amended at
“Nothing herein contained shall authorize or be deemed to authorize or empower the board of directors of any district to interfere with or exercise any control over any existing utility owned and operated by any municipality in said district unless by consent of the city council of such municipality or the governing body of such municipally owned plant, when the control of said municipally owned plant is vested in a governing body other than the city council or governing body of such municipality.”
Section 52, codified as amended at
“Nothing in this act shall be so construed as to modify in any manner any charter provisions of any incorporated city or town, or to prohibit any municipality from acquiring and operating its own plant.”
Because chapters 67 and 279 were enacted as part of a legislative package, we
ORS chapter 543 regulates hydroelectric power projects. The first phrase of
The Court of Appeals held that
The express language used by the 1931 legislature corresponds to the Court of Appeals’ analysis. The 1931 legislature patterned chapter 67 after the Federal Power Act.
The legislature departed from the language of the federal act when it chose to do so. The change is most clearly illustrated when the comparable “preference clauses” of the two enactments are compared. Section 7 of the Federal Power Act,
Finally, we note that subsection (2) of
“Ordinarily, when the legislature includes an express provision in one statute but omits such a provision in another statute, it may be inferred that such an omission was deliberate.” Oregon Business Planning Council v. LCDC, 290 Or. 741, 749, 626 P.2d 350 (1981). It is not our role to do what the legislature, for whatever reason, has not seen fit to do. Plaintiff‘s claim that PUDs should be included within the coverage of
The trial court and the Court of Appeals held that Emerald could not take defendant‘s existing facility under
Notes
“payment of just compensation, including such reasonable damages, if any, to valuable, serviceable and dependent property of the holder of the license, not taken over as may be caused by the severance therefrom of the property taken * * *.”
All references in the text to
“(1) Upon not less than two years’ notice in writing the state, or any municipality thereof, shall have the right at any time to take over and thereafter to maintain and operate any project constructed under a license pursuant to
“(2) There is also expressly reserved to the state, and any municipality thereof, the right to take over all or any part of any project by condemnation proceedings as may be provided by the laws of Oregon or the charter of any such municipality.” (Emphasis added.)
Compare Eckles v. Woolley, 302 Or. 37, 40-42, 726 P.2d 918 (1986) (reviewing the Oregon Constitution‘s diverse use of the word “corporation” in Article XI as well as the constitution‘s use of the phrases “municipal corporations” and “corporations” for “municipal purposes“).
The Oregon Revised Statutes also use these terms to refer to different units of local governments. See, e.g.,
“The provisions of
We note that the correct term is “people‘s utility district.” The 1983 legislature amended
We note that the Attorney General, on February 13, 1981, issued an opinion stating that Emerald could not take over defendant‘s existing hydroelectric facility under
The Attorney General‘s opinion contains an excellent discussion of the political events preceding and following the enactment of what are now ORS chapters 261 and 543. See 41 Op Att‘y Gen at 342-