*1 COOPERATIVE, ELECTRIC WILLIAMS Appellant, Inc., Complainant and

v. CO., UTILITIES

MONTANA-DAKOTA Respondent.

No. 7584.

Supreme Dakota. of North Court

Sept. 1956.

Rehearing Dec. Denied

5H *4 Neff, Williston, for Bjella, & Jestrab appellant. *5 Williston, O’Connell, and Earl Burk & Isensee, Minneapolis, Minn., for A.H. respondent. Judge.

JOI-INSON, appeal judgment a an of the This is County, affirming district court Williams complaint a made dismissing an order respondent against the appellant Commis- the Public Service heard before sion. appellant of the

The contentions alleges claims. The first into two divided respondent appellant and had that the July agreement, an dated entered into dispute a between settle them Williston, vicinity which areas Dakota, each was to serve with North appellant per- had electricity; that agreement, of the all the conditions formed respondent had willfully but that violated terms thereof. wrongfully respondent alleges that second claim unlawfully its extended electrical had and transmission distribution lines violation NDRC 1953 respondent Supp.; that unless is restrained to cease and order desist com- (appellant) plainant irrepa- would suffer by enticing injury away rable its prospective customers, present and neces- sitating the construction of duplicating injurious electrical lines and to the damages hearing filing and the answer interest, which its did not special appear- constitute waiver of proof. Both a its capable of exact are not respondent ance. In answer the general- will interfere that these acts allege claims ly complaint denied system allegations unreasonably with the service and except acknowledged as admitted. It (appellant). complainant To agreement execution of the dated complaint respondent and filed entered 1952; alleged but that under the rules of appearance alleging special a that Commission,particularly the Public Service Commission had either to rule contract, obliged serve that construe or enforce the irrespective new customers of the areas in function; judicial a that the being com- located; which such customers plaint might be did not set forth facts sufficient to terminated; contract been constitute basis for action the Com- terminated, if it had been apprise mission or to thereof, complied had not with paragraph 6 the issues involved. requiring written notice to the complaint From the and the evidence setting developments forth unforeseen appears that the objected to requesting meeting to resolve the differ- extensions of electric service the re- ence, so, and that until it did it was in no spondent property designated as the position complain; Blox, property, Edward Hamann Inc., had also violated the terms and conditions North Dakota Concrete Products Com- agreement. *6 pany, Williston Corpo- Basin Refining generally The answer further asserted ration, Matt at Ray, Anderson and that the the line of extensions of electrical Camp Amerada Trailer Tioga. at There respondent the in the the named was some concerning discussion Njos the complaint lawful in with and accord property, but as later, we shall see 49-0301, statutes, particularly the Section is not involved this proceeding. Supp., respondent and that NDRC 1953 the

The Public Service required pub- a Commission is not to have certificate of set matter for hearing necessity this and October lic convenience such ex- 19S3, Williston, at North Dakota. tensions. During hearing the attempted to The Public Service Commission took ex- introduce in evidence facts with reference testimony upon the tensive issues involved. respondent

to the extension the of its fact, findings law, of of It made conclusions vicinity electrical lines in the of the cities complaint dismissing an order the and of Ray of Tioga, and which it alleged were appellant. unlawful. The objected to the introduction of this evidence on the Cooperative, Inc., The Williams Electric ground original complaint was here, appealed from the decision not drawn with sufficient particularity of Public Service Commission to the apprise of this issue. The County, North district court Williams Public Service agreed with The matter was heard the dis- Dakota. this contention and recessed the hearing to record made in the court trict 30, 1953, November granted ap- and the court Public Service Commission pellant to enter file an amend- The Williams Elec- its decision. affirmed complaint. Upon ed resumption of the Cooperative appealed judg- tric hearing recessed reasserted to this court. of dismissal ment special appearance its and filed an answer complaint. appeal to the amended respond- to the district court the Upon participation argued twenty-nine ent asserted presented its city court the road from limits of Willis- In this specifications .error. ton, main under five North Dakota. presented contentions these points : During September, Mon- “4. Contract; Company tana-Dakota effect- 1. Utilities sys- ed an extension of its distribution installation respondent’s 2. That tem about one-half a mile east a without constructed complained of was above-mentioned North Dakota Con- ne- convenience certificate crete Products Co. to serve the Willis- 49-0301 required by Section cessity Corporation ton Basin Refining Sec- complain- in violation amended and tion 19-154-101. Chapter NDRC under rights ants’ 1943; “5. Commencing on or about day February, 16th MDU ef- 23 of the 3. That rule fected an extension of its electric dis- Service, Commission, of Electric Standards system tribution to render electric serv- issues; application to has Blox, Inc., corporation ice to a unsupported findings are 4. That place Nj/£ located in business unsup- evidence, conclusions and the 28-154-101, a NE54 findings; ported by the distance of between 300 and 400 feet. fair a appellant was denied 5. “6. MDU underbuilt its trans- hearing. mission line with distribution line one city quarter of mile from limits presented argued and thus issues Dakota, Ray, North to enable it to a de- themselves appellant reduce buildings serve the of one Matt Ander- following questions: termination son Section 15-156-97. Public Service Commission Does Corpora- enforce “7. Amerada Petroleum construe jurisdiction to *7 appel- paid into between tion caused construction of and entered contract 21, 1952? July on owns distribution and electric fa- and the lant tapping a cilities transmission line of of transmission extensions 2. Were adjoining MDU Section 34-157-95. respond- by made lines distribution and proceedings, in these complained of ent, and lawfully rendering is “8. MDU statutes, particularly and of the in violation service the districts wherein electric Supp.? 49-0301, NDRC 1953 Section the facilities described each of standing Public Service ing facts : n Montana-Dakota Insofar 3. fected findings, conclusions in these “3. theWas an extension orOn as it proceedings? appellant denied issues about Commission. necessary to an under- Utilities September involved, we set forth of its electric dis- Company ef- order It found as 14, fair 1953, of the hear- tric tion, volving Amerada any unreasonable ice system or service facilities above ^[******] “10. prior to Cooperative, Inc.” and findings is None had been of MDU at February, the extensions of the of the interference with situate, Petroleum rendering issue herein Williams Elec- save that Corpora- cause serv- in- system findings quoted, to serve the North tribution on Based Company Products following made the Dakota Commission Concrete. 19-154-101 across Section of law: situate in conclusions contractual appellant “1. The enforcement of forded the a fair hearing, or constitu- rights obligations and the findings of fact made tionality provisions stat- agency of the of the supported are the evi- dence, of this Legislature utes enacted or that the conclusions and de- ques- judicial state functions or cisión of agency supported are not tions; Article findings under of fact.” state, judi- the Constitution of this Courts; power

cial is vested in the This court has held that the courts therefore, cannot, enforce do not have jurisdiction, primarily, to pass rights contractual decide questions administrative assigned to constitutionality any statute. utilities commission (PSC) for determination and where such commission “2. The electric extension in its proceedings process furnishes due system for the distribution of MDU ‘law and there is sup substantial evidence to Blox, purpose rendering port the findings commission, Inc., North Dakota Concrete Products courts have authority to substitute their Co., Corpora- Refining Basin Williston judgment for that of the Ap commission. Anderson hereinbe- tion and Matt plication of Rapid Co., Theel Bros. Transit fore described was not unlawful. 72 N.D. 560; 6 N.W.2d Application of lawfully Ditsworth, selling MDU is “3. 78 N.D. 48 N.W.2d 22. See Corpora- Amerada Petroleum also energy to Great Ry. Northern McDonnell, Co. v. 34-157-95, tion in Section Williams 77 N.D. 45 N.W.2d 721. County, North Dakota. As court, a reviewing appeal, our in- "Wherefore, it is ordered that the quiry will be directed as to the

complaint of Electric Co- the Williams of the Public Service Commission to con- Inc., be, operative, hereby, and it strue and enforce the contract dated things dismissed.” all 21, 1952, between and the respondent, as to whether the findings of the findings of fact made The trial court Public Service supported Commission are affirming law the dismissal conclusions evidence; substantial whether its con- complaint judgment appellant’s applicable struction of the proper, law is accordingly. entered whether the has been afforded hearing. a fair to seek a *8 of the Public Service order review of the growth The of the Williston community Administra from the derives Commission consequent and its need for power Act, Chap Practice Uniform Agencies, tive precipitated dispute appel- between the scope The of the NDRC 1943. ter and the concerning right lant the 28-3219there forth Section is set review to serve customers in the area. To settle of. It states: they their differences entered into agree- “ * * * July 21, pertinent ment dated the por- the court shall affirm the which are as tions of follows: agency unless it shall decision such or find that decision determination Therefore, “Now in consideration of law, in accordance with or is the mutual covenants agreements and in violation the constitutional it contained, parties herein the hereto appellant, any the or that rights of agree as follows: chapter of this provisions have not the complied map with in the proceedings That the been “1. attached hereto agency, or that the the rules or marked Exhibit ‘A’ before and part made a procedure agency the representation not af- is a true hereof Upon ap- surrounding agreement execution the community and Williston pellant develop- complied provision. At- with this and experiencing growth

area map agreement be- tached to is a referred dispute exists ment wherein off-by map to as Exhibit A. This blocks parties as to tween the electricity party red each was lines the areas in which with new customers serve operate. by a thereon indicated and there is boundary to be ob- heavy line red agree- The contends Cooperative by parties, served effect and ment remains full force and cus- new to render electric presented clearly indicates that evidence north west, to the tomers situated contending was that there Company to and the red line east said agreement been a breach of and viola- new custom- render electric service seeking tions of its terms and that was said line. boundaries within the ers The denied enforcement. thereof ^[******] “6. If this is in conflict agreement or with the any franchise portion there had agreement, interpretation placed been any disputed breach the construction or violation City appellant, its extensions and insisted that Company in the held per- transmission lines Williston, state electrical distribution and laws of the parties complained of within Commis- to the Public Service taining to the that it had not set the terms of the statutes and regulations rules and sion and the Commission, only authority, obligation, decision but up by said requested court, make these extensions when comes conflict or decisions, parties pro- franchise, laws, some of the in these court involved such de- ceedings. if unforseen legislation, future arise, the contingencies velopments question for our determination first thereby may give party hereto affected whether not the Public Service Com- party ad- other notice written mission has to construe and developments re- it of such vising entered into enforce contract between effort parties meet in an quest that the and the differences. to resolve 21, 1952. resolved, agree- this be same cannot thereupon be terminated shall ment Public Service Commission deter- respective pursue their may mined that the enforcement of the con- agree- regard to without rights obligations and the courses tractual con- Chapter stitutionality ment.” SLND judicial respondent, raised func- agreement entered time the At the of the state. tions vested courts the Public was before there into complaint three Public ap- filed Service Commissioners officers. are constitutional which the Public Serv- pellant based Their duties North Dakota Constitution. had entered an order ice Commission *9 desist, powers prescribed are law. respondent to cease and Sec- against 83, provided: Dakota tion North Constitution. in this connection agreement immediately “The railroad cooperative will board of commission- “The powers, regula- only has in the complaint it has filed ers withdraw utilities, public have been tion Public Service with Legislature. Public Service Commission conferred ask Chrysler Light P.& Co. v. Belfield and Desist Order Cease to dissolve 871, complaint N.D. 224 N.W. 63 A.L.R. based said 33] issued has [58 Clark, Tail Power Co. pending proceedings.” 1337.” Otter v. and dismiss

517 919; 915, 320, 331, which 59 N.D. 229 N.W. private carries out the terms aof Co., Lyons 68 contract, not, Power course, v. Otter Tail operate does 403, N.D. 280 N.W. 192. divest the jurisdic- Commission of its

tion.” Pub general jurisdiction The Public Service Commission utili public lic over Service Commission this state is not charged with the enforce 49-0201, NDRC ties is set in forth Section private ment of function is contracts. Its specific powers Its with reference 1943. to regulate public compel utilities and not to forth are set utilities enumerated as the enforcement obligations. of contractual 1943, in as amend Section NDRC Atchison, Ry. T. & S. F. Railroad Co. v. provi ed. or We have found no statute Commission, 828, 577, 173 Cal. P. 2 160 in sion the North Dakota Constitution A.L.R. 975. clearly This is im also judicial power vests in the Public Service port of Otter Clark, Tail Power v. 59 Co. power is vested Commission. Judicial 320, 331, 915, N.D. 919, in which 85, N.W. courts, IV, Article this quoted court approval North con Dakota Constitution. case Eshleman, 200, Hanlon v. 169 Cal. tractual rights exist between 656, 657, 146 P. 1915B, P.U.R. 842: agreement under 21, July 1952, de dated which we do not “ ‘With rights intending of an termine, rights the enforcement of such purchaser the nothing commission has must be in the courts of this state. sought to do. power Nor has it to determine power judicial being No in the Pub vested whether exists, a valid contract of sale state, it has lic Service Commission or party whether either a legal adjudicate alleged claim against the under other such con- rights contractual tract. These questions for agreement, participation and the courts, and not the railroad com- members, Commission, or some of its mission, merely which is authorized to negotiations execution preceding its prevent public utility an owner of a wholly did immaterial. The Commission from disposing of it where such dis- 21, 1952, approve not agreement position would in- safeguard by any Electric Co formal act. Trico See ” public.’ terests of the 358, operative Ralston, 196 P.2d v. 67 Ariz. 470; Motor Com Transit v. Railroad Co. general As a rule administrative mission, 573, 586, 189 Cal. 209 P. agencies, boards, and commissions cannot last case cited said: consider, adjudicate, contractual rights disposes petitioners’ obligations “This con- parties. between Hence they

tention pass the Commission is cannot on the validity of, or en force, enforcing private order effect con- nor can agencies, administrative boards, which, between tract individuals commissions change or annul course, contracts, empow- except the Commission is not they where have been granted power by ered to do. Western Ass’n organic of Short statutory valid Line Railroads v. Railroad enactment to do C.J.S., Commis- so. 73 Public Ad sion, 391, 173 Cal. 162 P. ministrative Procedure, A.L.R. Bodies and § 1455. The fact that an order of the Determination of Contractual Rights, pp. Commission, given pursuance 393 and cases cited in notes 66 to power Commission’s and under inclusive. The Public Service Com duty regulate public Commission’s power mission has no *10 construe, to enforce compel performance utilities and the adjudicate or validity or effect of the public, of their duties to the parties incidental- contract between the question ex requires petitioners ly cept to do an act as to its effect matters within its electrical depend- property is being is served with That jurisdiction. energy by appellant. statutes. ent the exten- contends that re and as Insofar sions of the and distribution transmission con seek proceeding, spondent, this give lines to to enable it enforcement interpretation struction, complained parties electrical service to the Public agreement of the re- was made unlawful was correctly determined Commission Service spondent public con- without a certificate of Since jurisdiction. without it was necessity required venience and jurisdic Commission Public Supp. NDRC 1953 obligations contractual to enforce tion under to proceeding, "Certificate of Public Convenience exists, next question if any agreement, Necessity; Secured n ex is whether our determination Utility. utility public No henceforth and distribu transmission tensions oper- begin shall or construction com respondent, and made tion lines public plant system utility ation of a or of, of law. plained are in violation thereof, or extension first ob- without taining from the commission a certifi- con- Commission The Public Service public cate ne- convenience and the extension law that a matter of cluded as cessity require require con- or will such by the service of electric operation. struction and This section Prod- Blox, Inc., Concrete Dakota North require any shall not be construed to Refining Basin Company, the Williston ucts public utility certi- to secure such Anderson, law- were Corporation, Matt ficate for: lawfully ful, and that Petrol- Amerada energy selling electric “1. An extension any within munic- 34-157-95. in Section Corporation eum ipality or district within which it has lawfully operations; commenced Public Service noted that It will be with findings specific made no An “2. extension within or to ter- furnished to the service ritory already reference necessary served preliminary In property. Hamann the ordinary business; Edward course of its or findings it said: its discussion territory An con- “3. extension into “Furthermore, testimony there tiguous already to that occupied by it cooperative to the manager and not receiving similar service from Hamann, to Edward effect that service * utility, cooperative another or electric ** complained of con- was not as corporation or if no pub- certificate of Technically, trary statute. there- necessity lic convenience and has been fore, system of MDU’s extension any issued to other utility. purpose serving undertaken for any public utility in constructing or Bros, may Njos Plamann or Edward extending line, plant, system, or properly be before us. We not do unreasonably interferes with or however, imply, if mean to about to interfere unreasonably with these customers construction to system any the service pub- other us that our decision properly before utility, lic cooperative any different as to such is- would be corporation, the commission on com- sues.” plaint public utility or the elec- specific cooperative corporation finding trial court made tric claiming affected, property. injuriously the Edward Hamann be after notice reference Njos title, hearing provided shows that the Brothers in this evidence may

519 section ent public enforcing this utilities electrical make such order utility and service. respect public as prescribe such terms and conditions No at legislature doubt had in mind just and reasonable.” 235, Chapter time of the enactment of 1927, 49-0301, SLND now NDRC Section to show There no evidence Supp., procure- 1953 desirability of the electrical facilities furnished ment and the from benefits to be derived inter- appellant’s complaint in mentioned the use of electrical com- energy. was It sys- or unreasonably service fere with the mon knowledge of the that as of the time appellant. tem of the enactment of this law had been extensions or not presented is whether question The beyond made cities organized borders of by the made extensions and villages may that fact have been lines to and distribution its transmission exceptions in consideration providing the the ex- parties mentioned are lawful under made only in the statute. The material A just thor- ceptions statute cited. change in the its statute from the date of indi- of the evidence ough consideration original enactment until the enactment lawfully if the cates that Chapter 285, 1953, SLND was the addition parties mentioned lines to the extended its 49-0301, in subsection 3 of Section NDRC must complaint, authority so to do Supp., 1953 co- words “or electric may If it subsection 3 thereof. be found in operative corporation”. reason- It is also statute, it provision do so under suppose able to in legislature that the necessary subsec- for us to consider is not mind might the avoidance of conflicts that 2 thereof. tions 1 and competition arise reason of between public utilities, or after the enactment of Under subsection 3 Chapter 285, 1953, SLND public between requisites Supp., 1953 three NDRC cooperative utilities corporations. procurement eliminate the must exist to may In sense, what be called its primary public and ne convenience a certificate “contiguous” has been meaning defined as cessity. They are: successive; immediately actual, close, or utility required The 1. is not close, in actual or Likewise, contact. “con- certificate if the have a extension tiguously” has been defined meaning already territory contiguous into to that with; contact joining; touching; touching it, occupied along part a considerable or the whole of side; touching one or joining edge at the receiving 2. Not similar boundary. C.J.S., 178, or Contiguous, pp. public utility or electric from another 179. In Co., Griffin v. Denison Land corporation, cooperative or 252, 1041, 1043, N.D. 119 N.W. public no certificate of con- court the word defined “contiguous”: necessity has been issued venience Century “The Dictionary defines the public utility. any other ‘Touching; word as: meeting join- or “territory ing is meant words at surface What border.’ object main sought Dictionary: contiguous”? Standard ‘Touching or joining edge of a statute is to ascertain boundary; at the construction close effect to the intentions of the adjacent; give together; adjoining; fol- Up to and until the advent of lowed to.’ legislature. Thesaurus Diction- cooperative corporations, Chapter ary ‘contiguous’ defines as ‘touching or NDRC 10-1301 et joining edge at boundary.’ SLND wholly depend- says it is seq., general Webster the Latin word *12 520 utility ‘to which similar

‘contiguus,’ contingere, akin to service another had sides,’ follows been purpose and then touch on all authorized. was to elim- contact; inate, instances, possible, ‘In actual in such definition: insofar as acent; near; waste, adj neigh- economic touching; deterring without the ex- also tension adjoining.’ availability He refers for boring; of electrical serv- ‘contig- public ice. As meaning long utility its as illustration of desiring extend ‘contiguous beyond territory its electric angles,’ uous and defines service leg angles authority one which it angles’ operate as have has can as show angles. Applying “territory that its extensions are in common to both contiguous” contiguous an- which receiving definition of is serv- Webster it, ice and receiving the most from gles, we think furnishes similar serv- which utility, coopera- in this ice from pertinent of the word another definition or connection, corporation, ‘contiguous of land’ tive tracts or not had service au- utility, which thorized connecting must of land another be or bodies tracts part point territory side, proposed at of one or least service with “al- one ready side, occupied”, Lien v. is lawful in common.” See also and within the Co., may 73 S.D. terms of the statute and be made Engineering Northwestern with- 84, 483, public out a certificate of convenience and 39 489. N.W.2d necessity. territory” has defined been “Contiguous con- “Territory touching, adjoining and as appears It from the evidence that none of territory nected, from distinguished complained appel- the extensions C.J.S., territory.” separated by 17 other lant were it. receiving similar service from Territory, p. 180. Contiguous appel- most At the evidence shows lant’s electrical lines were so located toas definitions Applying various these it, extensions, enable construction of territory” to “contiguous “contiguous” and furnish electrical service statute, which recites wording of our of, complained ready, was and that it able already oc- to that “territory contiguous willing and to furnish such service. composed area cupied”, to an refers by one or owned of land one more tracts or statute, As contained in the what persons, joined together by a common more receiving is meant simi words “not part boundary or of one or more on all is, lar service”? word “receive” like sides, territory in which the common many language, other our words rela utility serve in which authorized to was term, meaning signification tive and its operation, lawfully commenced may according differ to the circumstances territory proposed service which area employed. and connection in which it separated the authorized ter- from was not ordinary meaning usual “receiving similar ritory by tracts service something term that has been taken into utility, cooperative or electric from another possession, commonly accepted its public corporation or if certificate meaning it concept carries with it the necessity has been issued convenience something physically has been delivered or utility.” public any other placed in recipient. the hands of the 75 C.J.S., Receive, p. these various definitions 642. Labarthe v. When McRae, Cal.App.2d intent 35 appears that the applied, it 97 P.2d thus 253; utility coopera Public Utilities or .electric permit a v. Cong not to operations don, leapfrog 315; 137 Me. 18 A.2d corporation to Web tive receiving either New International Dictionary, Ed., which was ster’s area 2d across an utility Unabridged; Phrases, another Words Re similar ceive, p. corporation, cooperative or in or electric *13 statute, phrase “not any the from cooperative As used the electric or that a util- service from another receiving public similar certificate of convenience and neces- cooperative corporation”, sity ity, or electric had any public been issued to other utility as distin- reference to service in fact for territory. has findings of It ability the give to service. guished supported from Commission by substan- of electric- tial physical delivery denotes actual evidence. energy. language There al It argued respondent that since the may that gathered which it be statute from made extensions to the Edward Hamann to extend legislature was the intent the of property 2, 1953, on February or about territory in which force to of the statute Blox, Inc., to February about the of middle merely utility cooperative had a or electric 1953, that these extensions are not within electrical ability desire to deliver Chapter the issues since 285 of the 1953 energy. Session Laws did not become effective as law of this state until March the statute This construction unnecessary But it becomes to consider that respondent was not it clear that the

makes question in of our view determination that public required to a certificate obtain complained all of the extensions of were necessity any of convenience and, within the terms of the statute there- complained The Public of. extensions fore, lawful. concluded that the ex Commission Service system distribution tensions of the electric question The next respondent enabling it to render for determina Inc., tion is Blox, appellant whether or North Dakota Con not the

service to been Company, denied fair Basin a hearing process Products Williston and due crete of law. Corporation, and Anderson This contention Refining primarily Matt is based propositions; first, they In three not unlawful. other words that were a fair hearing has appellant the terms of the statute. been denied by were within specify the refusal did not under the Commission Service While Commis they grant permission sion to exception in the statute deemed to what file a second complaint amended to alleged service law cover rendered viola tions, ful, both under the shows that the extensions contract between evidence statute, parties “territory parties and ttnder the contiguous made to to that were already occupied receiving it and other than those set forth in the amended utility, complaint. another similar service from It will be recalled that the hear they ing cooperative”, nor were October was recessed to public territory appellant for which certificate allow the to file and serve an necessity complaint convenience and amended alleged cover been issued vio any utility. other lations trial court not the construc only included those tion extensions not mentioned in the mentioned or find referred ings original complaint. Upon Commission, the Public resump but specific finding hearing made a tion of the reference to 1953; November the Edward property, Hamann endeavored also cross-examina witness, further found as fact tion of the Gamble, the evidence one of the of failed to establish that the extensions respondent, ficers of the to show alleged lines electric distribution violations other than those set forth in the complaint. territory Objection were not in amended con to this already tiguous occupied by to that the re cross-examination was sustained spondent, and further being beyond evidence as the scope of they failed to establish receiving appellant’s complaint. simi Thereupon lar other utility complaint offered to amend its This information and enable it violations. data would further allege other and as- thus Thus controvert the issue created. motion was denied comple- possible it would be to extend the error. signs ruling delay considerably tion of a hearing and granted appellant had been the final issues. Un- determination complaint once. original to amend its der the circumstances refusal of *14 knowl- its had come to violations further grant Commission to the filing and the time the between edge appellant complaint right the to its amend complaint the and amended service of the time, the second an abuse did not constitute was noth- hearing, there resumption of the of discretion. proceeding that the in nature of ing the appellant right of the the Second, foreclose appellant would it was contends that the lay violations person to such other a failure hearing denied fair based on by the Public Service before in of the hear- the Commission the course is complaint. proceeding This filing proceedings a new con- ing to take notice of other alleged and issues only the conclusive cerning the before the Commis- com- presented the amended sion, party, violations a appellant to the not which was Commis- plaint. Public Service the While production of the files of which without the authority permit amendments to appellant sion notice taken. Section the wanted rules, is noth- complaints under its there 1943, permits adminis- an NDRC proceeding of the instant ing competent in the nature agency trative to avail itself of al- its refusal to indicate that which would information or relevant evidence in its complaint the of the low the amendment possession, or furnished members of dis- an constituted abuse second time staff, any person or secured from in the cretion. independent investigation course an con- agency, in ducted such addition to evi- “Allowance, during the course the presented dence at any hearing. formal of amendments

proceedings, may it desires use such to information it do including amendment an to pleadings, copy transmitting after so of it for the proof, pleadings to the is conform party thereof each evidence abstract to the officer before discretion proceeding of record in the and after af- is proceeding conducted.” whom party, upon fording such each written re- Administrative Am.Jur., Public quest, opportunity an to examine such in- 126, page 460. Law, Section present or evidence and formation to evi- dence in connection therewith and to cross- being made fact, If, extensions person furnishing examine the such in- territory which the respondent into by the public hearing a further formation at to be it, under the to is reserved claims appellant days’ least called and held at ten notice complain and file to statute, the right it has mail. given registered alleged viola- complaint cover to a new tions. show that the facts was at- procure access tempting to to entire (com- if the clear that is It approval dealing with the of a service file Public Service Commis- plainant before the Williston Basin Re- between assert, contract hearing after a to permitted is sion) Corporation and fining deal- alleged violations not other progress, is in proposed refinery service to the ing with its the Commis- before pleadings within approval thereof. Mere the terms permission to amend its requests sion, and be ineffectual to would confer violations, contract cover such to complaint authority upon the to render the respondent to meet the enable to order contract, service, subject of the unless created, necessary be it would thus issue of such the re- extension hearing to obtain allow time postpone process stat- ed spondent was within the terms to constitute due adminis- proceedings; required the extension trative all right to construct that is ute. Its liberty property such service render is that necessary enable produc- protected by citizen shall rudi- be be on the statute. must based therefore, mentary Its file, requirements play. would of fair tion entire utility requirements to extend include revelation establish disputed would on refinery and thus evidence which a order its service to based, opportunity explore deter- any probative value in the not be of evidence, If it of the issue involved. conclusion based mination reason; deny requirements error access to its essential body file, prejudice. met error without where the administrative it was required to determine the existence necessary Third, nonexistence of facts of a hear denial fair *15 any upon of before decision is 73 predicated made.” ing is also the refusal C.J.S., appellant to Public Bodies the to the Administrative Commission allow Procedure, 60, p. Gamble, the 385. an and cross-examine Mr. officer of § respondent, with reference to a certain person party has Whether a public and neces certificate convenience deprived by process been the of due of law pur sity which he held in his hand for the body action of an agency administrative

pose memory. ap refreshing his The depends on to the contrary whether acted it pellant demanded that the document be arbitrary and statutes and rules and with produced purpose as an for the exhibit study of unreasonable A discrimination. cross-examination. This was denied for a applicable in evidence and the statutes time, eventually pro but the exhibit was proceeding volved all indicates that respondent, duced counsel for the identi applicable the evidence and the statutes fied, appellant The and is evidence. had thoroughly considered right a to cross-examine witness with court, The Commission. trial after respect used to document refresh to comprehensive study record reached of the witness. Dr. D. Ea recollection R. the same result as the The Commission. Co., 175, Doherty, ton v. 31 Chemical N.D. appellant has had hearing. a fair 966, 189, See also on 153 N.W. 970. Jones Cases, Edition, Evidence, Third Civil Sec The urges that the case of Kos- Evidence, 876, 1382, p. Wigmore tion and County ciusko Rural E. Corp. M. v. Public Edition, 762, p. Third Comm., Serv. 225 Ind. 77 N.E.2d evidence discloses that determines the issues now before We us. opportunity an to cross-examine wit conclude study of the decision that respect ness with to this exhibit after was applicable. it is not Indiana has statute If it produce received. was error not to similar to Section 49-0301(3), NDRC 1953 immediately upon demand, document Supp., and the case holds that a rural elec- production error was cured and membership tric corporation public is a used, by appellant, opportunity to cross- utility. No such determination has been witness concerning examine the the same. fact, made in this state. In under the stat- utes existing, May 27, then 1946, when the applied to “As administrative offi- appellant obtained authority to construct, bodies, cials, and agencies, process due operate, and maintain its lines, electric not a term of fixed of law is and invar- Public Service Commission concluded that content, greater flexibility iable public it was “not a utility.” given to the term ap- has been when agencies plied to administrative than In view our disposition of the issues judicial applied presented tribunal. when to No in this proceeding it becomes un- form of particular proceeding requir- necessary is to consider the alleged uncon- points points primarily at Here Chapter 285 issue. two stitutionality of issue, upon the were at Laws, is did the Public Service Com- based which Session construe, an power mission have the inter- is bestowed there argument that statute, pret agreement enforce the cooperative under such electric inter- did complain unreasonable have a statu- right to tory right confer- utility without make the extensions com- by a ference plained utility with of? Since did not ring a similar alleged interference contractual unreasonable reference rights parties, corporation. Nor cooperative obligations of the then authority reference make maleethe necessary for us extensions was to be derived from the Commission. number 23 of rule power statute, granted did not or it af- court the trial judgment exist. firmed. argu- devotes considerable ment to the contention that somehow MORRIS, SATHRE, BURKE, J., and C. approval material in relating the file GRIMSON, JJ., concur. contract, of the service entered into on 12, 1953, October between the Williston Rehearing Petition On Corporation Basin Refining “custom- *16 er” and the Montana Dakota Utilities Judge. JOHNSON, Company, “company” bearing as the a had rehearing is petition for on the issue. It insists that appellant’s our statement The that it contention solely to the that: devoted hearing. fair of a deprived been "Second, appellant the that contends opinion filed in the and 6 Syllabi 5 hearing it was denied a fair based on our constitute September case this failure the Commission the course pre- issues principal of the to hearing determination of the take notice of other determina- appeal. Our upon proceedings concerning the sented make to the right Commission, of the before the to which the tion cer- without complained of appellant party, extensions was not a without necessity public production ap- convenience of the files of which the tificate ap- interpretation of the taken”, pellant notice was based wanted 49-0301(3), NDRC statute, Section plicable quoted language was incorrect. If the is a authority of words In other Supp. misconstruction of situation and of the here was done what do respondent to is, see, record, wholly we as shall it im- granted statute. power upon the rests dealing In material. this matter we that determination Thus, our after say: did was without Commission Service Public construe, interpret, en- to (referring respondent) “Its to the 21, 1952, agreement force right construct the extension neces- interpretation involved the issue remaining sary to enable render it such service grant what ascertain statute be on the must based statute. The application to and its involved power file, production therefore, of the entire facts. not would establish utility its to extend re- to the course, elementary is, It * * finery *.” hearing the is administrative in an even had plead Counsel raised demanded to those limited sues file. production of the He be confined to the said: hearing should and a ings produced opportunity answer, so that explain, want the file not an “We contents; which Mr. Gamble refute or we can see the order cross-examine its consequently been entered.” has testified has has been denied a fair it hearing. But assuming that its contents and were ensuing argument In examined and considered the com- mission, statement, comment, although the Com after this there no evidence that in take notice the record or findings mission indicated that it would and deci- sion Commission, not in evi question of this file. The file itself is re- any it is in mains how insists that its dence. contents could have possible theory primary evidence that the relation in- Commission to the issue notice would take volved. The had indicated that states that we can- agency, possibly not administrative thereof. While an tell because we do not know person investigation or contents. conducting primary But we do know is- law may sue in this hearing, proceeding waive the usual common matter of was the application statutory if waiver existing rules of evidence such of a statute to an substantial situation. necessary only to ascertain the facts material to proceedings, proper parties application rights interpretation of all the may only accept evidence statute consider and showing those the locations of probative or evi information extensions value. No made and that the Chap except provided in whom dence otherwise extensions had been made were 28-32, not 1943,, receiving ter “shall be consid NDRC similar service from 28-3206, ered.” furnished NDRC 1943. Then from another utility, cooperative follows Section deal corporation, NDRC ing or that with the consideration of no certificate of information convenience presented necessity hearing. at a formal been issued other public utility. was without Those facts are all in evi- *17 statutory authority Upon dence. to consider evidence or their consideration and the interpretation possession information in its or furnished statute the decision by Inquiries members of its made. staff or secured from as to other facts would person independent necessity in the course of an lead to in evidence unrelated to it, vestigation by in addition and outside of to the evidence the issue. But because of presented at the earnest hearing, the formal without contention made we will ex- compliance question with the amine the terms of this statute. further. presume We must that if “extra record” The service contract before us as Ex- posses evidence or information was in the hibit 23. solely It deals with the rights of sion of the bearing on the is parties purchase the sale and of elec- sue, that the Commission would have com energy. trical what relevancy the Just plied with the terms of the statute and thus proceedings leading up to approval given opportunity

have to the to the service contract could possibly have on cross-examine, answer or refute concern the determination of the statutory interpre- ing such evidence or information meet or to tation involving the right way. in some other Since this was not to make the complained extensions of with- done, presumption prevails that no “ex aout certificate of convenience and neces- tra record” or information evidence entered sity, explain. does not they into the decision of proceeding by relevancy have no issue, to the they Public Service Commission. necessity probative are noof or evidentiary already per- been said value in the What would solution of the issue.

haps appellant’s suffice to answer the con- question tention that the file in was before It is an elementary rule of evi by reference and the Commission that it did dence that matters offered must be relevant 1952, estab- tend to made case and the extensions the issue of the facts not Irrelevant disprove them. unlawful. lish or not do circumstances, which is those are entirely We rule in accord with the logical no upon, or have any light throw Am.Jur., noted from 42 must be issue, which relation the facts Law, Public Administrative Section disproved party one established pages 483 and which states: collateral, other, remote and which are evidence. admissible properly party not “A hearing to an administrative records applicable to principle is This is entitled to know the witnesses Evidence, Am.Jur., Sec- evidence. See 20 against evidence There is him. pri- Here 239 and pages tion no hearing party when know cannot not, under mary issue was whether what evidence is offered or considered ex- statute, make respondent could and is test, not given opportunity certificate complained of without explain, tensions or refute.” perfect- necessity. It is of convenience “Supreme Court decisions on official no respondent had if the obvious that ly notice, interpreted, properly form stat- under the extensions right make highly doctrine, satisfactory body of certificate, inwas ute, without such perfectly consistent with the thesis Williston service to the position to render the sole validity test of adminis- The execu- Corporation. Refining Basin trative resort to extra-record materials parties by the contract of the service tion is whether or not the ad- Serv- Public approval and its thereto equate opportunity meet mater- those wholly im- thus be would ice Commission appropriate ials Davis fashion.” provisions to the issue. material Law, on Administrative leading the evidence contract and page 510. possibly bear approval could concerning matters inquiry Any issue. apparent It is here that no record” “extra would contract relating to the service evidence was considered issue primary necessity be collateral Service Commission in arriving at its de- Inquiry must proceeding. in this involved cision. end somewhere. appel- One the cases which the necessity inquiry rely heavily, Teleph. must of lant seems to

Where Ohio Bell *18 upon a pursuit Commission, of Co. v. 301 lead evidence Utilities U.S. to 292, con in matter to the issue under 57 S.Ct. 81 L.Ed. is not collateral sideration, pursue inquiry point telephone to here. case inability That involved a fair hear rates. In will not in the denial of that case it was held that a denial result process not ing. hearing”, The term "fair does of due of law resulted where imply telephone to have witnesses sum basis for an right requiring order a questioning company patrons mat for irrelevant to refund to its moned “excess” C.J.S., The Hearing, p. earnings during Fair years, a ters. collected series of it that that the Commission indicated a state commission fact valued company’s property of the of the years would take notice contents each these of apply- file, say ing that it fact do so. in is not to did in to value year, earlier which indicates that it did not take had determined on hearings, price record it trend the contents of the file. any cognizance percentages said to have been derived from by stating issue before it evidence which It determined Commission took of- notice, alleged which it it had no over the ficial but that withheld from the rights obligations of the and refused records to reveal. This contractual evi- bearing had a agreement upon direct parties under the dence the issue apparently purpose which of the investi- main was was the available at the time. The gation. entirely different Commission had hearing. Here we have an the file at appellant issue of the determination situation. The felt that any the file was of material depended statutory inter- proof involved value or proper constituted pretation. in the files which case, matter what connection No with this there was no appellant by refer- reason why are in evidence it requested insists could not have a contained, ence have recess for such evidence could purpose examining the file possible no aid to bearing, what, nor would it determine if anything, therein con- interpretation assist tained of the statute was material, leave and then ask to power use which deduced that photostatic we substitute certified copies made authorizing extensions existed evidence thus submitted. At proceeding. any rate complained in very it is comprehend to difficult

why particular contents of this file would bearing upon the essential issue has been said here What here, that interpretation of a statute. approval leading file to the reference to the The certificate nearly was issued sixteen the service contract between Willis- years before appellant obtained au- Corporation ton and the Refining Basin thority construct, to operate and maintain respondent applies to Case No. 1-1935. also its electric lines. It was up- not incumbent complains that it was respondent on the copies to furnish copies involved furnished of the documents appellant of a record available to it and the only in which the that document case. The failure of to copies furnish reference requested noted be does not in itself constitute denial of a ne was certificate convenience fair hearing. To render hearing unfair cessity 1-1935. It is issued Case No. true in the defect practice or the complained of copies original but were furnished be such must as might lead a denial to intro It was certificate is in evidence. justice, or there must be an absence of one duced to show by the of the elements deemed essential due in 28- Qualey serving been Section Ole process of Am.Jur., law. 42 Public Admin- authority of the certificate. 154—101 under Law, istrative page 481. The territory in Qualey con Ole was located evidence or information the files referred tiguous of some to that was not before the Commission. There made respondent had extensions. whom the nothing the record to show that such purpose of In the certificate other words the evidence or information was considered. were made was to extensions show test, explain No territory was within the terms of refute material evidence the issue was to this exhibit referred statute. We denied. A hearing fair was afforded the opinion. had an main our appellant. We adhere our decision. concerning it. opportunity to cross-examine obtaining other evi If it desirous petition *19 rehearing is denied. this certificate file which dence from the BURKE, contained, why J., SATHRE, is no reason there C. GRIM- SON, MORRIS, TJ., to it. had access The file concur. could not