*1 CO., UTILITIES MONTANA-DAKOTA Company, and Otter States Power Northern Plaintiffs, Respond Company, Tail Power Cross-Appellants, ents, and
v. Attorney
Helgi JOHANNESON, General Dakota, al., et for the State North Respondents, Defendants Inc., Cooperative, al.,
Baker et Electric Defendants, Appellants, Cross-Respondents.
Civ. No. 8355.
Supreme Court of North Dakota.
Aug. 23, 1967.
Rehearings Denied Oct.
Pearce, Engebretson, Anderson & Bismarck, Schmidt, respond- plaintiff, for ent, cross-appellant and Montana-Dakota Co., Isensee, Minneap- Utilities Earl H. A. olis, Minn., of counsel. Daner, Bismarck, plain-
Wheeler & for tiff, respondent, cross-appellant North- Nelson, Co., ern & States Power Brusven Sommers, Minneapolis, Minn., counsel. Daner, Bismarck, plain- Wheeler & tiff, respondent, cross-appellant Otter Co., Field, Arvesen, Tail Power Donoho & Lundeen, Falls, Minn., Fergus of counsel. Sand, Atty. Gen., Paul M. First Asst. Bismarck, Helgi Johanneson, Atty. Gen., respondent. defendant and Gen., Helgi Johanneson, Atty. E. John Adams, Gen., M. Atty. Asst. and Norton Gen., Hatlie, Sp. and Com- Atty. Asst. merce Commis- Counsel of Service Bismarck, sion, respond- for defendant and ent Public Commissioners. Bair, Morris, Bismarck, portion It further Vogel & tutional. held that the James Mandan, Bernays found to be invalid was severable from the Frederick Wiener and Wise, C, balance of the and that the balance of Washington, D. W. William C. Holand, Judgment the Act valid. entered Grafton, Roy was was DePuy, A. La- T. accordingly. Kloster, Dickinson, Moure, Her- Paul G. Meschke, Minot, Thomp-
bert Alfred A. L. co-operatives appealed The defendant son, Bismarck, Myron Fargo, Bright, H. summary judgment, from such and from Lindell, Washburn, Eugene William An- thereof, demanding the whole trial de novo Schulte, thony, City, Q. R. Watford Stan- plaintiff this court. The Mandan, Calton, ley, Ulmer, L. G. Calvin cross-appeаled portion Bottineau, Benson, Crosby, B. Robert O. summary judgment portion held a Chesrown, Linton, Johanneson, Lang- Kent Noack, don, Carrington, Fabian & finding the Act constitutional from the Johnson Cook, Milloy, Wahpeton, Maurice Bow- E. portion of the trial court un- held man, Richardson, Hazen, Bjella, constitutional was severable from rest John Jestrab, Williston, Pippin, Neff & for de- of the Act. fendant, appellant, cross-respondent generally referred The Act in co-operatives. Its Integrity Law.’' to as the “Territorial *5 purpose 49-03-01 was to amend Sections STRUTZ, (on reassign- Chief Justice Century North Dakota and 49-03-05 of the
ment) . utility, required public before Code which operation beginning construction or utilities, Three public investor-owned public utility system, or an exten- plant or Company, Montana-Dakоta Utilities North- thereof, sion obtain from the to Company, ern States Power and Otter Tail public certificate of Commission a Company, doing Power in the business necessity. convenience and Dakota, bring State of North this action public provides that electric the Act no declaratory for a judgment against twen- operation utility begin shall construction ty-one co-operatives, joining rural electric system, or ex- public utility plant or of its Attorney General the State and thereof, obtaining first tension without members of Service Commission Commission such from the Public Service who, by of the State of North Dakota neces- public certificate of convenience being required law which is challenged, are provide: sity, goes on to and then provisions. to administer its This action is brought validity to test the “ * * * utility public nor shall such 1965, of the Session Laws of and to seek extend electric transmis- henceforth its injunction against an its enforcement. or out- beyond sion distribution lines corporate any munic- side of limits joined, plain- After issue was both the ipality, any nor shall it serve customer tiffs and the defendants moved summa- place where the is not locat- to served By summary ry moving for judgment. corporate a munic- ed within the limits of parties that there is judgment, all concede until, applica- after ipality, unless and to material genuine issue as facts no tion, public utility such has ob- electric action, they to be determined public tained from the service an order declaratory the court enter a seek commission of North Dakota state under Rule North Dakota judgment authorizing such extension and service of Civil Procedure. Rules public certificate that convenience summary require necessity permission that the motion passing por- given held that a extend lines and to serve the trial court such judgment, such customer.” Act was unconsti- 3 of the tion of Section by the Public regulation Service Commis- being the law 3 of public allege sion. The utilities further attacked, follows: reads as public utility that a can custom- have new public “The commission service corporate ers within the limits of a munici- not Dakota issue its state of North shall only pality if this does not interfere with public conven- order or certificate of co-operative provided already services public electric ience аnd co-operatives municipality; in the that utility electric distribution to extend its public right complain against have the beyond corporate of a lines limits utility, utility no but that the has customer municipality or to serve a complain against co-operatives for right to place to is located out- whose be served encroaching interfering with customers or municipali- corporate of a side the limits territory public utility. upon corpo- co-operative ty the electric unless They gives electric assert that facilities nearest ration with lines or utilities, and rights certain place required shall con- where service is they yet specifically provides that shall by such writing extension sent such be deemed utilities. unless, upon public utility, or electric cоmmission, called hearing before Finally, public utilities contend notice, upon be shown shall preference, disregards the law customer required cannot be service energy is com- and the user corporation. co-operative an electric of a unwilling subscriber pelled to be an necessary if not be Such certificate shall get service co-operative order approves service commission co-operative. agreement an between a argument Thus co-operative serv- rural electric and the Laws of Chapter 319 of the Session includes the station ing the area which unfair, unreasonable, and arbitrary, desig- agreement to be served *6 pro- group one discriminatory in favor of in an area to be nаtes said station to be expense the services at viding electrical public utility.” by the served public utilities prejudice of and provides 4 the Section of law for certain public. expense of the and at the from exclusions the of the Act. 3 of the held that trial court The plaintiff public The utilities contend that sentence Act, exception of the last the with the law is unconstitutional for a number of pro- in that it thereof, unconstitutional was They public utility reasons. contend that a Commission Public Service the hibits required application cer- is to make for a delegated exercising legislatively its “from public of tificate convenience in determin- public the power protecting of ” to extend its service a new customer necessity.’ ‘public convеnience ing municipality, outside of a while co- 3 dele- that Section court held The trial required operatives to make such nonregulated com- power to a gated such application to serve new rural customers. corporations, or petitive of citizens class They further contend that or safeguards adequate providing given monopoly without in rural areas and rules promulgation of the standards for operate supervision are allowed to without inter- protect the regulations regulation Com- unconstitutional est, it was an mission, and that regulated while utilities are inwas power and legislative of They delegation aspects operations. all in their the clauses due-process of the violation say co-operativеs, under can this trial constitutions. Federal State and infringe upon now served an area portion however, find that such court, did corpo- the if it is outside of to be unconstitu- it found any the law which municipality, rate limits of the without power hold The exercise of tional from the was severable balance of Act, legislature invalid is one of Acts and that the balance of has of the courts. highest functions was valid and in full force and effect. power one been held that this involves courts, responsibilities of the greatest appeal by the defendant co great be exercised with and that it should operatives court, in tried an action restraint, reluc caution, and even with summary judgment, and from the Law,” Am.Jur.2d, “Constitutional tance. 16 thereof, demanding trial whole de novo in 109,p. Sec. court, this all of issues in the raises appeal, on that are case those favorable as exercising power to declare as which are unfavorable to the well those invalid, the Legislature enactments of appellants. raised, No additional issues are presumption start with the courts therefore therefore, by cross-appeal Assembly acted within its constitu utilities. may re though the law powers, tional even inequality. sult in State v. Gamble some genuine no Since there were issues Inc., supra. Skogmo, determine, fact for the trial court entry summary judgment by the trial question The first facing ap- us on this court, 56, proper. Rule motion, was peal whether, invoking presump- after N.D.R.Civ.P. tion validity favor of the 1965,
of the Laws of
infringes
statute
upon constitutional
palрably
restrictions so
regularly
319 is a
enacted
that there
is no room for
and,
such,
Act of the
can be
validity.
words,
doubt as to its
In other
only
held invalid and unconstitutional
if at
unfair,
unreasonable,
the law
arbitrary,
so
four of
judges
least
of this court shall
and discriminatory against
utili-
decide.
so
Sec.
N.Dak. Constitution.
ties as to
itmake unconstitutional ?
presume
court
This
must
that an
Where
language
of a statute is
Act of the Legislative Assembly is consti
clear, certain,
unambiguous,
the courts
valid,
tutional and
doubts as to its
only
duty
giving
effect to
must,
constitutionality
possible,
if
all
at
expressed
intent thus
Act.
validity.
resolved
favor
its
State ex
Asbury Hospital
County,
v. Cass
N.D.
Baker,
rel.
v.
74 N.D.
Johnson
359,
421
might more
competition.
economically
11
73
Public Utilities
render such serv-
§
C.J.S.
guidelines
seq.,
ice. No
pp.
et
and 1007.
are set
out in the law
by
to be
co-operative
followed
the
in mak-
contend, however,
plaintiffs
The
ing such determination,
safeguards
and no
319,
Chapter
pro
3 of
which
provided
against arbitrary
by
action
by
giving
vides for the
of consent
the ru
the co-operative.
pointed
As this court
out
co-operative
ral electric
nearest the rural
in Nord Guy, supra,
v.
and in the earlier
area, proposed
to be served
case of Wilder Murphy, supra,
v.
we must
utility,
delegation
legisla
is an
unlawful
guided by
be
certain rules which control in
tive
court has held in a
authority. This
our consideration
the challenge by
legislative power
number of cases that
can public
constitutionality
utilities to the
Murphy, 56
delegated.
not be
Wilder v.
the Act.
Legislature
The
must declare the
436,
156;
ex rel.
N.D.
State
N.W.
policy
definitely
and must
fix
Davis,
191,
Kaufman v.
229 N.W.
59 N.D.
legal principles
which are to control
105;
Guy
141 N.W.2d
(N.D.),
Nord v.
action
taken.
If the Public Service
395.
permitted only
Commission is
to ascertain
poli-
facts and conditions to
invalidate a
But to
statute because
cy,
ap-
Legislature,
as declared
tois
delegation
legislative
of unlawful
au
ply, the Act will be held constitutional.
thority,
clearly appear
must
attempts
But
Act
delegate,
where the
power
is,
fact,
delegated
legis
which is
either the Public
Service Commission
Peterson,
949,
N.D.
lative.
v.
Anderson
co-operative, powers and functions
We believe finding this begin opera- was error. There convenience and to is no distinction tion in municipality between last sentence and extending this before and the balance of it their municipality, which service outside of a instances, found to be co-operative invalid. In both a while need not secure such public utility expand to to do wishes into a rural certificate business outside of a mu- instances, area. nicipality. In both unjust the electric co- Does constitute an operative nearest the area to be served persons groups discrimination between agree case, must to such In one furnishing commodity electricity extension. the same — it in writing public utility consents that the —so as to process constitute denial of due applying may to equal protection furnish such service ex- and under the law? area; other, tend its lines into such in the We believe there is a valid basis for approval
it enters into a formal
of such
utility.
classification of
public
suppliers
extension
We can
these
situations,
find no distinction in the two
energy
electrical
legally justifies
which
and,
agree-
whether it be
consent or
distinction,
such a
whеre the
ment,
co-operative,
and
provide
sees fit to
such grouping.
for
Commission, actually
determines
public utility,
case of a
the consumer
granted.
whether
the certificate shall
absolutely
operation
has
no
voice
operated
private
business.
is
profit
benefit
of the
and
stockholders
We therefore hold that all of Sec
given
is
monopoly
a virtual
by law in the
unconstitutional,
tion 3 of
319 is
super-
area where it serves. Unless some
delegation
as an unlawful
au
for,
vision is
excessive
rates
thority.
unjust procedures
imposed, adopt-
could be
ed,
practiced.
co-operative,
An electric
public
utilities also contend that all
hand,
on the
operated
other
is
without
of Chapter 319
unconstitutional,
in that
profit.
consumers arе
Its
members of
the entire law discriminatory
and arbi-
co-operative and, members,
are in con-
trary, requiring
utilities to se-
trol
policies
and have a
in the
voice
cure
certificates
convenience and neces-
co-operative.
The directors select-
sity
extending
before
service to new cus-
ed
the members fix the
rates to
tomers,
co-operatives
while
permitted
charged. Furthermore,
charged
if rates are
to extend service to new customers outside
which
bring
are excessive and
in more
municipalities
securing
ap-
without
than is needed for maintenance and costs
proval or certificate of convenience and
excess,
operation, the
under the
necessity. They contend that electric co-
is to be
members,
returned to the
operatives
given monopoly
operate
the law specifically provides that electric
in areas
municipalities,
outside of
without
co-operatives
operated
are to be
without
supervision,
while
utilities are
profit
10-13-05,
that,
strictly
[Sec.
regulated
supervised
N.D.C.C.]
in all as-
if rates charged produce
pects
an excess over
operation.
of their
They further
what is
operation
needed for
and mainte-
gives
contend that the Act
nance and for
improvement,
reserves for
right
complain against public
utili-
shall be returned to the
ties,
members
gives
but
to the
[Sec.
utilities no sim-
10-13-06,
Furthermore,
if the
right
complain
ilar
against co-operatives
N.D.C.C.].
policies
co-operative
are not satis-
unreasоnably
interfere
custom-
with
factory
consumers,
they,
as mem-
upon
ers
or encroach
bers,
power
But,
change
them.
territory.
their
utility,
case of a
consumers
*9
public
regulat-
It is true that
utilities are
have absolutely
operation
no voice in the
ed,
co-operatives
business,
while
are
Public of the
making
poli-
not.
in the
of its
cies,
utilities must secure certificates of
in the fixing
or
of its rates.
government.
prin-
branches of
Under the
Federal constitu
The State
ciple
authority
op
separation
powers,
uniform
require
to have
tions
all laws
special
pass legislation
Legisla-
to
in the
any
is vested
eration,
granting of
and the
exclusively.
tive
any
government
class
Branch of the
immunity
to
privilege or
part
power
law-making
The con As a
of the
of the
expressly prohibited.
citizens is
however,
not,
pro Legislative Assembly,
right
it has the
to
limitations do
stitutional
policy.
policies
The
classification, provided
such classifi
determine
hibit
otherwise,
or
purposes
adopts may
of the which it
be wise
for the
cation is reasonable
justifiable
but it
upon proper,
prerogative
is not
courts
legislation,
based
is
to
purposes
the wisdom of the laws which
concerning
distinctions
arbitrary,
Legislature
is not a subter
We believe that
enacts.
is not
provides
burden an
or to
the enactment of a law which
fuge to
one class
shield
unlawfully
ad
other,
supervised
regulated
in its
oppress
utilities
Commission,
by
Co. v.
Woolworth
Public Service
F. W.
ministration.
supervi-
provide
which does not
for such
Gray,
46 N.W.2d
77 N.D.
co-operatives,
sion
regulation
of electric
Chap-
Here,
by enacting
Legislature,
controlled
supervised
which are
Laws, has es-
Session
ter 319 of
members,
legis-
their
would be within such
policies
regulations and
tablished certain
authority.
determination is a
lative
This
services
of electrical
govern the extension
that, in en-
policy
We do not find
matter.
the busi-
Dakota.
If
in the
North
State of
statute,
Legislature
made
acting this
op-
its
public utility,
operated by
is
ness
special privi-
grant of
unconstitutional
Public Service
regulated by
is
eration
co-opera-
leges or immunities to electric
operated
an elec-
If it
Commission.
classi-
it
was to establish
tives. What
did
the control
under
co-operative,
tric
and is
electrical
suppliers
for the
fications
themselves,
Legisla-
of the members
legal-
energy,
are based
which we believe
ture,
wisdom,
that such
assumed
its
ly justifiable distinctions.
business,
members,
their own
who control
inter-
their
adequately protect
own
would
Legislative policy, while not con
Service
by the Public
ests and no control
courts,
clusive on the
is entitled
great
necessary.
deemed
Commissionwas
consideration.
In re Garrison Diversion
Conservancy District (N.D.), 144 N.W.2d
The fact
policy
82. And such
established
given
Act,
right,
are
under the
to com
subject only
to limits fixed
plain to the Public Service Commission
by the State and Federal constitutions.
against public
utilities
violate
v. Young,
77 N.D.
43 N.W.2d
James
Act,
but
utilities
692,
the violation of this Act Having held that Section 3 of co-operatives. Thus, while unconstitutional, 319 is ques complain cannot to the tion now portions arises whether those Commission, they not without an ade the Act found unconstitutional are severa- quate remedy. ble from the balance of the law. In other words, under our can Legislature, the balance of the Act stand Constitution, independent given effect, three and be though portion is one of even
424
invalid,
the law is
or
In Department
of
must
entire
of
Highways
State
fall,
Baker,
702,
for
law
as contended
v.
257,
69 N.D.
290 N.W.
129
por-
925,
utilities?
аs whether
A.L.R.
this court had under considera
tions of a
tion the validity Chapter
statute which are constitutional
170 of the Ses
upheld
effect,
1939,
be
given
shall
sion
assessing
even
Laws of
levying
though portions
special
are
of the law
struck
tax of
gallon
license
one cent a
unconstitutional,
primari-
as
all
down
involves
motor-vehicle fuels sold
licensed
ly
the ascertainment of
intention of the
dealers in the State of North Dakota.
objectionable parts
Legislature.
If the
are
Act
saving
This
contained no
clause.
penalty provisions
severable from the rest of the law in such
of the Act
found
were
way
presumed
unconstitutional,
that it
would be
that the
to be
but the
balance
por-
Legislature
upheld
would
enacted such
have
in a
deci
was
three-to-two
parts,
court,
case,
without the
the failure
tions
invalid
sion. The
in that
Malin
citing
portions
County,
140,
of the invalid
necessari-
would
v. LaMoure
27
145
N.D.
ly
582,
render the
invalid.
L.R.A.,N.S.,
entire statute
N.W.
997,
50
Ann.
case,
may
such
be enforced as Cas.1916C,207,
statute
said:
portions
law which are con-
to those
of the
part
“Where a
of a statute
unconsti-
Am.Jur.2d, “Constitutional
stitutional. 16
tutional,
require
that fact does not
Law,”
186,
If, however, the
p.
Sec.
414.
courts to declare the remainder void
por-
and the unconstitutional
constitutional
also,
con-
unless all
upon
dependent
each other
tions
so
subject-matter
upon
nected in
depending
Legislature
that the
to warrant the belief
other, operating together
each
en-
in their
intended them to take effect
purpose,
same
or otherwise so connected
tirety or
follows that if the
all,
not at
it
together
meaning
that
it
cannot
effect, it
given
must be
whole cannot be
presumed
Legislature
would
Assembly
presumed
Legislative
passed the one without the other.”
portions
the valid
passed
not have
would
then
independently,
entire law is
and the
Milhollan,
Hughes
See also
rel.
State ex
v.
valid.
184,
292, p.
50 N.D.
N.W.
at
Where the Legislature has used a
Are
various sections of
saving
Act,
clause in
passage
the in
dependent upon
so
each other or connected
tention of
Legislature,
course,
in meaning
presumed
cannot be
clear.
held,
This court has
on several oc
the Legislature
passed
would have
the val-
casions, that in
such event the
portions
id
of that Act without
found
those
will
given
intent
Coyle
effect. Menz v.
to be invаlid?
think
provi-
We
not. The
(N.D.),
425 SCHNELLER, judges the of the one of tension; ex- 4 for certain provides Section District, sitting in his stead. Third from the limitations on extension clusions Judicial service; provides 5 for enforce- of Section the a against
ment of
Act and restraints
PAULSON,
being a
J., not
member of
public utility for interference with another
at the time
submission of this
the Court
of
public
co-operative,
utility or an electric
case,
participate.
not
did
against
permits
bringing of
and
the
actions
public
co-
electric
utilities or electric
TEIGEN, Judge (dissenting).
recovery
and
operatives
damages;
оf
definitions.
Section 6 lists certain
It is clear to me that the Legislature, in
adopting Chapter
the
319 of
Session Laws
We
that
believe
the
policy
established a
of law that a
Act
3 can
from the
be stricken
public utility,
therein,
as defined
shall not
validi
any
affecting
in
manner
the
without
permitted
be
by the Public Service Com-
ty of
of the
such
the balance
since
expand
mission to
upon its electrical serv-
dependent upon each
provisions are not
ices
the
in
rural
State,
the
areas of
unless
it
meaning
in
that
other or so connected
it
until
has obtained an order from the
presumed
Legislature
be
the
must
Public
authorizing
Service Commission
2, 4, 5,
passed
not have
Sections
would
such
and,
extension and service
with one
6
and without Section
exception, a
certificatе of
conven-
necessity.
ience and
3, quoted
in
Our Legislature, in enacting the
the majority opinion, governs the Public
Century Code,
possibility
foresaw the
of Service Commission in this decision.
having
part
a
law
by
declared invalid
provides that the Public Service Commis-
the courts.
it
So
in the
sion shall not issue its order or a certifi-
any
sentence,
clause,
part
event
chapter, or
cate of
convenience and
any
adjudged
title should be
to be inval
electric
to extend
its elec-
id,
judgment
such
in
should not affect nor
beyond
tric
corporate
lines
limits
aof
part
validate
other
Sec.
law.
municipality, or to serve a customer whose
1-02-20,
It is our
this
N.D.C.C.
view that
place
served is located outside the
apply
of interpretation
rule
is intended to
corporаte
municipality,
limits
aof
unless
to amendments to the Code
as to
as well
finds that certain facts exist. These facts
original
Code itself.
are that either
co-operative,
the electric
with lines or
place
nearest
facilities
point
utilities have failed to
required,
where
service is
has consent-
any provision
out
the Constitution
ed in writing
by
to such extension
the elec-
which makes sections other than Section
public utility,
tric
or that the
re-
service
319unconstitutional.
quired
provided by
cannot be
an electric
co-operative corporation.
The certificate
opinion,
For reasons stated
this
required
agreement
is not
if an
been
judgment of
trial court is
has
modified
public utility
entered into between
all of
uncon-
hold
Section 3
stitutional,
prоper
co-operative, provided
and, modified,
electric
it is affirmed.
approved
agreement
These conditions are
Service Commission.
ERICKSTAD, JJ., KNUDSON and
the Public Service
guidelines
govern
SCHNELLER,
J.,D.
CLIFFORD
concur.
administering
policy
Commission
as established
MURRAY,
at
J., member of the Court
this area.
case, deem-
time of
submission
specifically saying
majority, without
with
disqualified, did not sit
himself
ing
grant
so, have construed Section
Hon. CLIFFORD
argument,
Court on
by it
shall
served
remains for decision
monopoly in
rural areas of
State to
Commission,
co-operatives.
I do not
after
agree
ascertaining all the
with this construction of the section. I do
facts
conditions
question
policy
applies,
a which the
of the law
includ-
agree
whether
public utility
ing
may extend its
into
convenience
services
*12
neсessity.
only by
rural
to be determined
the
area is
co-operative
place
the
electric
nearest
police powers
The
exercised
State has
its
I
where such services are to be rendered.
to control
investor-owned
the
believe
Public Service Commission has
years.
jurisdic-
many
complete
for
While
power
grant
the
such extension in the
placed
the
tion was
in
Public Service Com-
by
agreement
absence of the consent or
the
mission over investor-owned
utili-
co-operative
electric
the electric
where
ties,
Legislature provided
the
co-operative
physically provide
can
jurisdic-
Service Commission shall have no
were it
for
services
not
the refusal
contracts,
“rates,
tion over
services rеn-
apply
customer to be
it.
served
for
dered,
sufficiency
safety, adequacy,
or
facilities,
regulations
or the rules or
The
require
statutes do not
a rural cus-
* * *
any public
operated
not
tomer to seek membership in the electric
* *
49-02-01.1,
profit,
for
Section
co-operative serving
area,
his
request
or
its
49-07,
Chapters
through
N.D.C.C.
49-01
service
Therefore,
nonmember.
if a N.D.C.C.,
applicable
which are made
potential
customer,
rural
for reasons of his public utilities,
Chapter 49-20,
N.
own,
refuses to receive central-station D.C.C.,
applicable
which is
to all electric
service
the electric co-operative serv-
companies,
impose
requirements
various
ing
area, it appears
his
to me that if the
upon public
apply
not
utilities whiсh do
co-operative
electric
provide it,
cannot
co-operatives.
police power
electric
The
production
proof
of such
in
hearing
be-
State
not
has
been extended over
fore the Public Service Commission autho-
rates,
electric
in the area of
it to
rizes
issue
order permitting
its
an ex-
contracts,
rendered, safety,
services
ade-
tension of
by
public utility,
service
if it
facilities,
quacy,
sufficiency
except
or
also
finds
convenience and ne-
safety regulations
lo-
when their lines are
cessity tests are met.
in, under,
public highways
cated
or across
public places,
49-20-02,
or
N.
Thus, the Legislature,
wisdom,
in its
has
D.C.C., or
construction
provided protection for
person
who re
high voltage
amperage
reconstruction of
sides in a rural area and who
chooses
lines,
49-20-03,
to receive central-station
N.D.C.C.
service from the
co-operative
electric
serving his area be
patron
relationship
The
between the
cause he does not
towish
contract with the
co-operative
is
on con-
electric
based
co-operative.
electric
protected
He is
subject
by
tract
is not
to control
required,
extent that he is not
against
Commission. There
no
is
will,
his
to seek
non-policed
service from a
buyer-seller relationship as the member-
supplier
electricity
may
which he
feel
buyer
both
owner is
and seller. An elec-
will
against
discriminate
him as did Lille-
operates
co-operative
nonprofit
tric
aas
Tri-County
thun in Lillethun v.
Electric
surplus
cоrporation
earnings cred-
Cooperative, Inc., N.D.,
Our 9 has not fit to seen in- to citizen to be free police right cludes the powers voke the in this area and it ways; to live lawful improper use faculties in all poten- for us to assume his that »is will; to live- earn his where he electricity tial rural work customer is now pursue calling; lawful compelled by lihood contract with electric vocation, that and for co-operative area, serving livelihood his unless the contracts which purpose to enter all co-operative into agrees consents or may necessary, and essential proper, give be otherwise. To such construction to carrying his out these purposes to a suc- process Thus the due protects clause cessful conclusion. Within the meaning of enjoyment insures the rights de- ‘liberty’ the term is also right included the clared Section 1. sell, buy freely to select tradesmen citizen may himself de- my It is required view service patrоnize, manufacture, sire to to ac- cannot an electric co- quire property, community, to live in a operative corporation potential if the rural market, open free and right customer for central-station service refuses speech, free against of self-defense un- violence, and, lawful general, to contract co-operative with the electric opportunity things to do those for such service. ordinarily done free men.” aforesaid, For reasons I am of the If the statute violates Section 1 of the opinion 319 of Session Constitution, it also violates the last clause delegation Laws of is not an unlawful provides: of Section 13thereof as it power. agree I * * * * * * person No shall remaining portions Chapter are val- life, deprived liberty property with- process out due of law. id.