NORTHERN UTILITIES, INC., Northern Utilities Division of Kansas-Nebraska Natural Gas Company, Inc., Northern Gas Company, and Northern Gas Division of Kansas-Nebraska Natural Gas Company, Inc., Appellants (Petitioners), v. PUBLIC SERVICE COMMISSION of Wyoming, Appellee (Respondent).
No. 5294
Supreme Court of Wyoming
Oct. 10, 1980.
617 P.2d 1079
Section
“(v) ‘Court proceedings’ means child protective proceedings which have as their purpose the protection of a child through an adjudication of whether the child is abused or neglected, and the making of an appropriate order of disposition;”
Compliance with §
Since the proceedings below were fatally defective, the orders emanating therefrom are reversed and the matter is remanded to the district court, where a guardian ad litem shall be appointed and a new hearing conducted.
Reversed.
THOMAS, Justice, concurring.
I wholeheartedly concur in the disposition of this case. I am not persuaded that the provisions of §
Rule 17(c), W.R.C.P., provides in part:
“... The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person, ...” (Emphasis supplied.)
In DS v. Department of Public Assistance and Social Services, Wyo., 607 P.2d 911 (1980), we identified parental rights with respect to the rearing of children as being of constitutional magnitude. Surely the interest of a child in being reared by its natural parents cannot be of a lesser stature. It is noteworthy that in that case, which also was instituted under provision of §
Wm. Bryce Arendt, Wm. H. Brown and Claude W. Martin (argued), Casper, for appellants (petitioners).
John D. Troughton, Atty. Gen., Thomas J. Carroll, III, Senior Asst. Atty. Gen., Natural Resources Division and Steven R. Shanahan, Asst. Atty. Gen. (argued), Cheyenne, for appellee (respondent).
Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.
The district judge dismissed as moot appellants’ (Northern‘s) Petition for Review of orders of the appellee Public Service Commission (PSC) suspending temporary tariffs filed by appellants in connection with applications for new increased rates for natural gas supplied to its customers pending the PSC‘s investigation, hearing
The appellants state the issues to be:
- “Whether the court below erred in recognizing as valid the action of the Commission taken during the time that the reviewing court had exclusive jurisdiction of the case?”
- “Whether the court below erred in refusing to order the Commission to certify and transmit the whole record to the district court?” (Emphasis in original.)
The PSC contends that the issues are:
- “Whether an order of the PSC pursuant to
W.S. 37-3-106(c) suspending an application for temporary rate increase is an appealable order under Rule 1.05, Wyoming Rules of Appellate Procedure.” - “Whether a ‘Petition for Review’ of a PSC order suspending an application for interim rate relief deprives the PSC of jurisdiction from entering an order rejecting for filing the appellant‘s permanent rate increase applications which are the basis for the temporary rate increase applications.”
- “Whether a ‘Petition for Review’ of a PSC order suspending an application for interim rate relief deprives the PSC of jurisdiction from entering an order rejecting for filing the appellants’ Application for Interim Rate Relief, when such rejection is based upon and enforces a prior existing order of the PSC which the appellants have ignored or defied.”
- “Whether the district court erred in denying appellants’ ‘Application to have the Record Certified and Transmitted to the District Court‘, when such application was made after the District Court had entered its final order on appellants’ ‘Petition for Review’ and at the same time as appellants were perfecting their appeal to the Supreme Court.”
Northern argues:
1. “The suspension of a change in tariff rate proposed under §
PSC counters:
- “An order issued by the PSC pursuant to
W.S. 37-3-106(c) [see fn. 1] is not an appealable order.” - “The PSC retained jurisdiction over the general rate increase application, and no ‘Stay of Enforcement’ order prevented the PSC from continuing to process the interim and permanent applications.”
- “The PSC retained jurisdiction to enforce its prior order concerning filing.”
- “A petitioners’ complaint that a state agency has failed to certify to the District Court the complete record on a ‘Petition for Review‘, pursuant to Rule 12.07, W.R.A.P.,4 must be brought before the District Court has entered an order on the petition, and not as the petitioner is perfecting an appeal to the Supreme Court.” (Footnote marker and footnote added.)
We will affirm.
Appellants, who we refer to collectively as Northern, are four separately certificated public utilities, each operating under a separate certificate of public convenience and necessity issued by the PSC.5 Northern, on December 3, 1979, filed four “permanent” applications, one for each of the four appellants, seeking approval of new tariff schedules which were attached. On December 4, 1979, the PSC, by four orders, respectively, suspended the effective date for the six-month period authorized by §
Additionally, on December 3, 1979, Northern filed four separate applications, one for each appellant, with the PSC requesting that if the “permanent” tariffs were suspended, a portion, according to tariff schedules attached, be placed in effect immediately subject to refund pending a hearing and decision by the PSC. These are referred to as “temporary” applications for an interim rate. On December 14, 1979, the PSC, by four orders, respectively, “suspended” the effective date of the “temporary” tariffs for six months.
On January 11, 1980, Northern petitioned the district court for review of the PSC orders “suspending” the “temporary” tariffs. Concurrently, Northern filed a Motion for an Order of the District Court to Stay Enforcement of the Orders of the Public Service Commission of Wyoming, dated De-
“The Court finds that a decision upon the merits of this case would be ineffectual as the Public Service Commission has rejected the application of the Petitioners for an interim rate increase. Said rejection supercedes [sic] the Respondent‘s suspension orders making a challenge to the Suspension Orders moot. Belondon v. State, 379 P.2d 828, 829 (Wyo., 1963). Cheever v. Warren, 70 Wy. 296, 249 P.2d 163, 167 (1952).”8 (Emphasis added.)
The basis for the PSC‘s rejection of Northern‘s applications for permanent and interim rate increases was that in 1978 after hearing on Northern‘s last general increase applications, a portion of the PSC‘s order entered at that time required the Northern companies to make a consolidated filing of future requests for a rate increase.9 The PSC by rejection of Northern‘s four separate applications for a general rate increase and rejection and denial of the four separate applications for an interim rate increase was seeking to enforce its 1978 order, which it contends was defied by Northern again filing and docketing with the PSC separate applications for rate increases: one for each of the utilities, seeking “permanent” rate increases, and one for each of the utilities seeking “temporary” increases. We do not, in this appeal, consider the propriety of this action by the PSC.
The PSC claims that it had authority to do so under its Rule 104(a):
“a. All applications, petitions, formal complaints, motions or other communications should be addressed to the Commis-
Northern takes the view that once proceedings are instituted seeking review of an order of the administrative agency, the agency loses its jurisdiction over the matters under review while simultaneously the district court acquires exclusive jurisdiction. Therefore, the PSC was without jurisdiction to reject Northern‘s filings. We acknowledge that this is generally true. State ex rel. Fawcett v. Board of County Com‘rs of Albany County, 1954, 73 Wyo. 69, 273 P.2d 188. However, as will be explained, this case does not fit within that rule.
We do not have before the court in this case the question of whether or not it was error on the part of the PSC to reject the filings as being outside its statutory or rule-making authority or otherwise improper to do so. It is our understanding that a separate appeal to the district court from the rejection of Northern‘s filings is pending. The fact remains, for the purposes of this appeal, that because of the rejection by the PSC, we are only considering and deciding the narrow issue of mootness arising out of the dismissal of the appeal by the district judge.
To summarize the rate change procedure: a public utility may charge its rates only as set forth in new tariffs and schedules as filed with the PSC, §
The December 4, 1979 orders of the PSC suspending the “permanent” rate applied for by Northern were not appealed in this case, by the filing of a Petition for Review. The only orders appealed by the filing of a Petition for Review were the December 14, 1979 orders of the PSC “suspending” the interim rate increase applied for by Northern. The net effect was that the applications for “permanent” increases and the orders suspending the new rates therein requested were still pending before the PSC for processing and were not included in the appeal of the orders disapproving—through suspension—the interim or “temporary” rates. We read the language of §
However, the PSC‘s rejection of the applications for “permanent” rates still under its jurisdiction and not on appeal through petition for review rendered moot Northern‘s appeal from the denial of applications for interim rates. This mootness existed because there remained before the PSC no rate filing to be in part placed into effect; the permanent rate and interim rate applications were inseparably coupled.
Affirmed.
ROONEY, Justice, concurring in the result only.
The majority opinion “goes around the bush” in reaching its result. In doing so, it gives indication of deciding the issue presented in appellants’ appeal of another case now pending before us and in which we have not had the benefit of briefs or arguments by the parties.
This case should be decided on the one simple issue of whether or not the trial court‘s action in dismissal of the appeal of the petition for review of the action by the Public Service Commission (hereinafter referred to as PSC) was proper. Other aspects of the matter need not, and should not be considered.
Appellants filed their applications or tariffs with the PSC proposing new rates (hereinafter referred to as permanent tariffs) pursuant to §
Appellants also filed with the PSC, pursuant to §
Appellants here appeal the propriety of the action taken by the district court in dismissing a petition to review the PSC order suspending the effectiveness of the tariffs presented under the interim request. The district court action here appealed from was taken after the PSC entered a subsequent order which did not suspend, but which rejected the request. In other words the dismissal was a result of the PSC finally taking an action which was in accordance with law.
The appeal was entertained by the district court in the first instance because the PSC action in suspending the interim request was without observance of procedure required by law, §
“The Court finds that a decision upon the merits of this case would be ineffectual as the Public Service Commission has rejected the application of the Petitioners for an interim rate increase. Said rejection supercedes [sic] the Respondent‘s suspension orders making a challenge to the Suspension Orders moot. Belondon v. State, 379 P.2d 828, 829 (Wyo., 1963). Cheever v. Warren, 70 Wy. 296, 249 P.2d 163, 167 (1952).” (Emphasis supplied.)
In this appeal to us, we should not go beyond that which the district court did.
I concur with the majority opinion in the affirmance of the district court, but only for the reason herein stated.