*1 рleads the defendant “(b) Whether probation. We would consider not and not guilty intends to pleads not or guilty, of discretion be- this to be an abuse hold issue of is relevant the appeal not the above-cited author- agree we with cause sen- appropriate is an probation duty is bound whether the trial court ity that' for application tence.” and determine consider probation. case, judge’s the trial comments In this suggest to not consider strongly his decision out other comments the point that We “upon generalizations probation turned sentencing in- judge at the time of trial offenses,” the types rather than about application that for crease our doubt of this case. facts and circumstances probation given consideration. Alternatives, Standards, Sentencing A.B.A. before, pur- not As we have we do said 2.5(e)(iii), total confinement if: condone § out say the standards are set port to that depreciate the seri- unduly “It would matters rigid above are rules and a sen- impose ousness the offense How- or considered. which can should be confinement. On tence other than total ever, skeletal framework they provide do a hand, community hostility to the other presented peti- properly a considering for legitimate for not a basis the defendant is view probation. Nor should tion a confine- imposing sentence total be opinion in this construed expressed ment.” this directing is that mean that this court probation. case, defendant judge suggest did not In this trial hostility par- community there sentence is vacated defendant, but he did state ticular to the district court and the case remanded public against persons who have sentiment proceedings accordingly. for further committed such a committed crime played a role in his decision by defendant consider probation.
not to Standards, Probation,
The A.B.A. isolate be taken
some considerations should grant a
into account the determination of probatiоn: COMPANY, a NORTHERN GAS granting probation. 1.3 Criteria “§ Appellant Wyoming Corporation, “(a) probation decision should not (Defendant below), upon generalizations types of turn about v. prior or existence of crimi- offenses a SINCLAIR, Wyoming The TOWN OF record, nal should be in the but rooted Corporation, Municipal Appellee each case. facts and circumstances of (Plaintiff below). the nature and The court should consider crime, history circumstances SINCLAIR, Wyoming The TOWN OF offender, аnd character and availa- Municipal Corporation, Appellant re- community ble institutional (Plaintiff below), should be the sen- sources. Probation sentencing unless finds tence COMPANY, a NORTHERN GAS that: Wyoming Corporation, Appellee “(i) protect necessary confinement is (Defendant below). further criminal activi- offender; ty by the or Nos. 4982. “(ii) need of correc- offender Supreme Wyoming. Court of
tional treatment which can most effec- April confined; provided or tively bе if he “(iii) unduly depreciate the se- would if
riousness of the offense a sentence
probation imposed. were *2 Drew, Brown, Apostó-
David G. Lewis of los, Sullivan, appel- Massey Casper, & appellee lant in Case 4981 and in Case No. No. 4982. Williams, Craig Rawlins, appellee
K. in Case and appellant No. 4981 in Case No. RAPER, J., Before C. and McCLIN- TOCK, THOMAS; ROSE, ROONEY, JJ.
THOMAS, Justice.
Northern this court to asks computation exclude from the fran- payable chise fee to the Town of Sinclair sales of natural made to an oil Northern claims there is an ambiguity granting in the ordinance developed franchise which is from evidence relating preceding circumstances granting of the franchise. The district granting court held that the ordinance taxing franchise should be viewed as a ordi- clear, nance and that its terms were unam- biguous, and should enforced. so ruling it held that evidence of surround- ing preceding circumstances the ordinance Both parties ap- not material. to this peal agree disposed case that the should be law even principles under of contract though case the district treated the invоlving one ordinance. We will affirm the district court awarding to Town of the one percent franchise'fee on the sales of refinery, do that but we will principles on the of contract law basis of relating rather than to taxes. We will rules Refining Company distributed natural surrounding hold that evidence of circum- users within relied to structure to homeowners and other stances cannot be community. In 1959 Town of Sinclair ambiguity language clear otherwise a certificate conve- applicable order to invoke rules to the con- necessity operate all electric nience and struction of contracts. gas utility properties within the Town *3 cross-appeal In a the Town of Sinclair that situation con- Apparently of Sinclair. asks that interest be awarded to it the 1967, the Town of tinued until with Sinclair trial judgment. amount of the court purchasing gas its natural Sinclair pre-judgment had refused to award inter- Refining Company. At that time a conclu- est, holding that such an award was not refining company was reached that the sion proper relating the to under rules taxes. public utility could be viewed as a because We will reverse the of the district gas of its sale of natural to the Town of regard pre-judg- this and hold that In the and fall Sinclair. summer of 1967 an ment have been interest should awarded to arrangement gas was made to sell the dis- the Town of Sinclair. system tribution in the Town of Sinclair to disposition While not material to the of Company.1 Northern Gas The Town of Sin- case, history process the of the of fur- proposed grant clair to a franchise to nishing gas natural service to residents of Company gas Northern to sell to Gas do- the helpful Town of in under- Sinclair mestic and commercial users within the standing position of Northern Gas Com- special Town of A Sinclair. election was pany. Company began Northern Gas sell- held in accordance with State law and the ing gas Refining natural Compa- Sinclair approved proposed voters sale on Octo- ny in 1952. Those pursu- sales were made 16, 1967, ber 1967. On October Ordi- ant to a certificate of convenience pursuant nance adopted No. was necessity by and issued the Public Service granted which the franchise was North- Wyoming Commission of not in- did Company, ern Gas franchise was gas clude sales of natural to residents of the accepted by Northern Gas on Oc- provided Town of Sinclair. The сontract 17,1967. tober The Public Service Commis- delivery of the natural at the receiv- Wyoming, anticipation sion ing pipeline Refining Company of Sinclair arrangement, authorizing entered order and that obligation providing pipe- purchase point consumption line to a was the gas system applica- described in the responsibility Refining Company. Sinclair tions and exhibits which had been sub- arrangement This through went on a series it, cancelling mitted to the certificate au- up of contracts to the time of trial. Sinclair, thority by held the Town of 1967, the point delivery changed authorizing Northern to fur- Sinclair, refinery yard Sinclair’s at Wyo- pursuant existing nish the services to its ming, Refining and at that time Sinclair authority. provided The ordinance with re- Company conveyed to Northern Gas Com- spect to consideration for franchise as pany pipeline point from the where follows: previously was point delivered to the new 6. As a consideration for аll “Section information, of delivery. Except for this rights privileg- franchise and contractual the record is silent so far as the actual under es the Town Sinclair gas pipelines location of the natural or the hereby granted, Compa- the franchise system distribution in the Town of Sinclair ny pay shall to the Town of is concerned. equal (1%) percent amount to one of the company gross Town of Sinclair was a Company’s revenue as said term is town, prior at leаst payment defined herein. shall Such accomplished description property 1. The sale was canee to the trans- on October Conveyance and Northern addition ferred and Bill of Sale of matters, signifi- to other extraneous attaches that date. quarterly day parties stipulated made on or before the refinery 10th 10, 1968, corporate of Jan and on or before the 10th was situated within the limits of day following of the month the end of Sinclair. district court succeeding quarter during provided each calendar judgment, for interest on the however, the term of this franchise. denying, the claim of the Town of pre-judgment Sinclair for interest. There “The term ‘GrossRevenue’ as used herein appear opinion does in the record an letter shall mean and be construed as the Com- of the district court which makes it clear pany’s gross operating revenue accruing that the district court treated the case as during precеding quarter calendar or arising taxing one from a ordinance rather fraction thereof from the sale of natural than as a matter of contract. It was the corporate within the limits of the of the district court that because Wyoming, Town of conclusion other than the matter involved a ordinance it such revenue derived from transactions in appropriate prior not to award interest commerce, foreign interstate or sales of *4 judgment. gas nаtural to the Town fromor business done with any Government or U.S. appeal In its Company Northern Gas agency thereof deducting and after states that the issue is whether Ordinance paid by therefrom amounts the Com- No. 112 is a measure or whether pany to the United or to the States State represents a contract between Northern Wyoming as excise or business taxes Company Sinclair, Gas and the Town of upon the sale or distribution of natural interpretation governed of which should be Sinclair, gas in the Town Wyoming, by Wyoming regarding law contracts. and at the election of the Com- Northern Company Gas then makes the fol- pany may ‘gross also deduct from reve- lowing arguments in support position of its nues’ the total of all uncollectible reve- percent that the one franchise fee should nues from customers within the Town applied not be gas to the sales of natural during previous quarter.” calendar refinery: period For a yeаrs ten Northern Gas “I. A FRANCHISE GRANT MADE Company paid the franchise fee on sales of BY A MUNICIPALITY TO A gas natural to the inhabitants and commer- PUBLIC SERVICE COMPANY cial IS, users in the Town of excluding UPON ACCEPTANCE BY therefrom all sales to Refining COMPANY, THE A CONTRACT. Company and its successors in interest. “II. WHEN A DOUBT ARISES AS February of 1977 the Town of Sinclair TO THE SUBJECT MATTER TO made upon Company demand Northern Gas BE TAXED UNDER THE CON- for payment percent of the one franchise TRACT, THE TRIAL COURT fee the sales natural to the EXAMINE THE EX- SHOULD refinery for the 10-year period. Northern TRINSIC EVIDENCE ADMIT- pay, Gas refused to and this ac- TED THE TO DETERMINE IN- tion by was then instituted THE TENT OF PARTIES. Sinclair to recover the franchise fee on the “III. IN DETERMINING THE IN- refinery together sales natural to the PARTIES, TENT OF THE with interest on the franchise fees on such BE WEIGHT SHOULD GIVEN sales from the payments time the were due. TO THE CONSTRUCTION PUT ON THE CONTRACT CONTEM-
After trial of the matter the district BY THE PAR- PORANEOUSLY judgment awarding entered its TIES. $39,658.78 amount of to the Town of Sin- clair. This sum represented percent the one “IV. THE CONTEMPORANEOUS franchise fee as applied to the sales of PUT CONSTRUCTION UPON natural gas to the oil The facts AN ORDINANCE BY THE AD- for the part disputed, most were not MINISTRATIVE AGENCY EXE- 1142 grant of this franchise and leading to the ry BE GIVEN IT
CUTING SHOULD
arrangements between
MEAN-
ITS
WEIGHT AS TO
Refining Company and
Company,' Sinclair
ING.”
interest, and the Town of
its successors
in its brief and
The Town of Sinclair
the sales of
must wonder about
one
created
that the franchise
argument agreed
were intended to be in
No. 112 and
adoption
Ordinance
Revenue” as
cluded in the term “Gross
by Northern
acceptance of its conditions
6 of
No.
defined in
Ordinance
Section
a contract be
resulted in
held, however,
repeatedly has
This cоurt
and Northern
the Town of Sinclair
tween
a contract
language
that when
does
Town of Sinclair
Company. The
language is con
plain
unequivocal was a reve
that this
did not claim
not and
interpretation of the con
trolling and the
power
adopted under
nue measure
court to make
provisions
tractual
is for the
taken
position
agree
We
with
tax.
This is the rule to be
as a matter of law.
expressed
concept
aptly
parties.
terms of the instrument
when the
applied
Municipal Corporations,
McQuillin,
in 12
Shepard v.
unambiguous.
plain
are
1970, Rev.), as fol-
34.06,
(3d Ed.
p. 18
§
Co., Wyo., 560 P.2d
Top Hat Land & Cattle
lows:
Ballou, Wyo., 499 P.2d
(1977); Mauch v.
is 730
right
to use the streets
“When
Gudim, Wyo., 488 P.2d
(1972); Craig
591
v.
accepted and all conditions
granted and
Chandler-Simpson, Inc. v. Gor
performed,
(1971);
imposed
right
incident to the
rell,
(1970);
Flora Con
Wyo.,
a mere license and becomes
464 P.2d
it ceases to be
”
* * *
(Footnotes
Valley Elec
Bridger
a valid contract.
struction
*5
Association, Inc.,
omitted.)
Wyo.,
(1958); Sapulpa
Sapulpa
v.
Oil and Gas
used,
language
if that can
done
and a
(1908); City
22
We turn then to the matter of inter part manded in in accordance with the fore- est. In appeal its going opinion.
1144 to the presented Public Justice, concurring. The franchise
ROONEY, specially amount of the Commission. Service is with in this matter My concurrence Applica- In Matter of the was 1%. fee au- power of and express recognition the Montana-Dakota Utilities tion of Public Service Commission thority of the its Rates Authority to Increase and and rates regulate control the services and and Electric Utili- Charges for Natural Gas 37-3-101, public W.S. of utilities. Section Municipalities (1) of ty Within the Services seq. et Sheridan, Kaycee Buffalo and Environs and of I it to be with consideration believe Sheridan, (2) Dayton, gas, and Ranches- trial the ordi- such that the court found ter, Big Story Horn and and Environs for as taxing misplaced nance to be device— electric, Dockets No. in Commission 9308 may the have been. consideration 9309, the Service Commission Public thus, (and, the regulating the rates franchise fee as a approved, a 1% profits) public utility, the Public Ser- of a proper doing cost of business. expenses vice must Commission consider 26-page findings of opinion, In the fact prоper utility. If the are a expenses law, the Commission re- and conclusions business, they cost enter into the doing aspect a franchise fee viewed the tax the rates computation in determination of premises. authority to act in the After charged to the The con- be consumer. law on the referring to extensive case sub- pays expense. All ultimately sumer that it had ject, the Commission found such party must utility in which a is a contracts authority and stated: the Public Commissiоn filed with Service authority to fix “We are endowed with 37— adjunct process. to this Section just and reasonable rates for utili- 3-111, W.S.1977. and, making process, in the we ties rate And so it is with franchise fees. . authority to their operating have consider determine Public Commission must Service expenses, determine reasonable- doing legitimate if fees are a cost of prescribe ness thereof and to treat- a fair the use of the business and rental for given discriminatory operаt- ment to be so, alleys. streets and If the Public Service they lawfully must ing costs incur utility Commission will allow the to include pursuit [Citing in the of their business. computation its rate expense 37-2-121, 37-2-122, that which now §§ structure; and all of customers 37-3-112, 37-3-104 and W.S.1977.]” munici- utility, both within without the boundaries, extensively pal pay quoting will their After State ex corporation part Telephone Telegraph proportionate cost of the fees as rel. Pacific & Co. v. If, however, al., utility their charges. Department service et Public Service Public Commission determines (1943), Service Wash.2d P.2d 498 Com device, it that the fees are fact a mission found *7 “ * * * utility will not use it in estab- allow to authority is vested with base, require the lishing a and it will rate consider and determine the reasonable- separate item utility to include the fee as a any expense item contract in- ness of on the utili- billings to the customers of by public determining in utilities curred ty of the who reside within boundaries just are reasonable rates for what and not allow the municipal corporation. It will e., consumers, charge i. them to their such municipal corporation”to the franchise use part a of the determinations are rate pay fee a securing as device for revenue making process. Consequently, we are expenses customers municipal utility whether empowered determine municipality. outside of the payments called Franchise Ordi- City appar- nance No. Sheridan recognized
All of this is well and pur- constitute a fair and reasonable amount My special ent. concurrence is for municipality pose as indicating pay I not want for MDU said do change occupancy therein. and use of its approval indicate an of a rental for streets, alleys Martin, grounds City and or Inc. v. County and of Honolu- whether, fact, portion a lu, thereof (1968). 50 Haw. I amounts to a tax.” interpretation concur with the here made by the court. The Commission then authоrized the fil- ing of a utility, rate schedule
would, among other things, authorize and
empower utility pass on
“pro rata to all consumers residing any
municipality within the Sheridan Division
of the Company any payments amounting
to more than gross 1% of its revenues
collected from them for either natural service, or utility electric payable un- CHANNEL, Appellant (Defendant Jim der franchise ordinance hereafter ne- below), gotiated by it with municipalities said compensation streets, for the use of their
alleys public grounds and Wyoming, Appellee in conducting STATE of its respective utility operations within the (Plaintiff below). corporate thereof, plus limits 2% of such No. 5008. excessive payments franchise to cover costs of accounting billing and such con- Supreme Wyoming. Court of thereof, sumers for their pro rata share April the manner hereinafter ordered.” In the Commission noted that it had approved
not a higher fee than 1%since the
1956 opinion, but it considered a number of
factors which could indicate a basis for
change in rejected individual cases. It
request approval of a 3% franchise fee approved a 2%fee. In See The Matter
of the New Agreement Franchise Between City of Cheyenne and Cheyenne Light,
Fuel and Power Public Service
Commission Docket No. 9563. jurisdiction and action of the Public
Service was, Commissionin respect
is, proper. us, the case before the franchise fee
was within ultimately the 1%limit. It will paid by all of utility My customers.
concurrence herein because we need
not here questions consider the of Public
Service jurisdiction Commission or exhaus-
tion of administrative remedies. legal construction effect of
contract, done, *8 as here is properly to be
determined by question the court as a
law, in the absence of an issue of fact.
Shepard Top Co., Hat Land & Cattle
Wyo., (1977); Coble, Bosler v.
14 Wyo.
(1906);