State Ex Rel. P.U.D. Etc. v. Wylie

I concur in the dissenting opinion of Judge Jeffers. He has fully set out the facts of the case as shown by the record, and has discussed the law upon the questions present here adequately and generally. *Page 173 I desire to add an analysis of the majority opinion itself, referring only to such facts as are pertinent thereto.

The property here in question is an integrated system. Indeed, experience has shown that, for that reason, parts of it cannot be condemned separately without incurring excessive severance damages. Being aware of this and of the broad powers possessed by them, the public utility districts collectively adopted a co-ordinated plan that involved a purchase of the whole integrated system of the Puget Sound Power and Light Company. The excessive severance damages incident to condemnations would thus be avoided and the public utility districts thereby enabled to acquire more cheaply the parts of the integrated system appropriate to their several uses. Pursuant to regularly adopted resolutions, they selected the Skagit public utility district to act as their agent and entered into contracts by which their rights and obligations with regard to the system were fixed. In these contracts, the manner of acquiring their particular part of the system, the price, the method of payment and of integrated operation were agreed upon with particularity among themselves. With this plan, the Puget Sound Power and Light Company, which has always objected to being dismembered by piecemeal condemnations, voluntarily agreed. Thus both the seller and the buyers are satisfied with the bargain reached. No one contends that the price agreed upon is not a fair one or that the system can be operated efficiently or economically except as an integrated whole. The wisdom of the transaction is neither questioned nor in question. We are concerned solely with the power of the public utility districts to complete it.

The statutory language to be construed is clear and unambiguous. The required power is specifically given to the districts to do as they have planned.

The nature of the integrated system makes it necessary to sell electricity in the unorganized territory as an incident of its operation as such. Indeed, this cannot be avoided without dismembering and crippling the system. This does not in any way negative the primary purpose of the public utility districts as being that of serving their own people or *Page 174 convert the plan into a scheme to go into the electric power business to sell to strangers only.

If this view of the facts be taken, then the lower court must be affirmed; for they fall squarely within the rule as announced by the majority opinion. To demonstrate that the facts as shown by the record in this case are those given by Judge Jeffers, I quote from the majority opinion:

"It may be conceded that this very ingenious and carefully devised plan gives to the various public utility districts concerned other than Skagit, the opportunity to acquire properties which they desire, at considerable savings over any awards that might be made if they were to endeavor to condemn such properties. It may also be conceded that Puget Sound's repeated objections to piecemeal acquisition are thereby obviated."

And again, the majority opinion says:

"(a) The Cowlitz, Lewis, Pacific No. 2, Whatcom, Chelan, Kitsap, Mason No. 3, Snohomish, and Thurston County public utility districts are to acquire the distribution properties within their respective districts. . . . The terms of acquisition are set forth in contracts which were admitted as exhibits."

These quotations show the collective nature of the transaction accomplished through the agency of the Skagit district.

I quote the majority opinion for the rule laid down:

"The primary purpose of the power granted to a public utility district by subsection (d) of § 6, chapter 1, Laws of 1931 (Rem. Rev. Stat., § 11610 (d)) is to furnish the district, and the inhabitants thereof, with electric current for all uses, and, as an incident thereto, it may furnish any other persons, including public and private corporations, within or without its limits, with such current for all uses."

The majority opinion, however, does not apply this rule to the facts in this case. Instead it adopts an imaginary hypothesis inconsistent with and repugnant to the facts as stated in the opinion itself.

It goes off on the assumption that the Skagit district is acquiring the entire system as if the other public utility districts did not exist, and thus by inference denies that, by *Page 175 the terms of their contracts, the other districts will acquire the property within their territory and devote it to the primary purpose of serving their people. The minutely defined relationships between the Skagit district and the others are ignored as if there were no such contracts and agency. Their power to so contract and the fact of their having so contracted is disposed of in this manner, I quote:

"The intertie provision (of the statute) contemplates connection with the power plants or distribution systems of other public utility districts or municipal corporations. We do not understand that respondent is basing any claim of authority on this provision." (Parentheses mine.)

That the lone wolf hypothesis in the face of the facts to the contrary is the basis of the decision is made clear by this language of the majority opinion:

"The facilities here sought to be acquired are unreasonably large and entirely inappropriate for the accomplishment of the primary purpose of the Skagit district."

"It is impossible to envision any necessity for purchasing the Shuffleton, White river, Electron, Snoqualmie, and Georgetown plants for the purpose of serving that district (Skagit) or its inhabitants." (Parentheses mine.)

Continuing the lone wolf hypothesis, the majority opinion treats the acquisition of parts of the system by the other public utility districts as a dismemberment process on the part of the Skagit district. I quote:

"We quoted testimony to the effect that it is necessary for Skagit district to acquire the entire system, because it is integrated. The figures show that it is planned to disintegrate it immediately, by cutting off 31,365 customers . . . and by disposing of seven small generating plants."

In the same sentence that it recognizes Skagit's authority to convey to the several public utility districts the parts they desire, it denies its right to act for them in the original purchase. I quote:

"While this amendment gives authority to sell and convey certain kinds of property without the approval of the voters, it still does not give a public utility district (Skagit only) authority to acquire or operate a `vast system operating in eighteen counties.'" (Parentheses mine.) *Page 176

The only reason suggested by the majority opinion as to why Skagit will not be permitted to act for the districts in executing this plan is that it is a big plan. I quote:

"There is nothing . . . which indicates that the act was intended to give public utility districts the power to engage in business beyond their limits on the grandiose scale here contemplated."

"The right given . . . is subject to the limitation that the facilities acquired must not be unreasonably large or entirely inappropriate for the accomplishment of that primary purpose."

It fails to suggest how a little system, too small for the job, can be made to work. Everyone concedes that the system is not too large for its purpose. It is simply large. I quote:

"Recognizing all the values and advantages of the acquisition of this integrated system . . . Where does the Skagit district get power and authority to purchase `this whole vast system extending over eighteen counties?'"

The majority opinion arrives at a legislative intent to prohibit adequate size of operating properties in the following manner, I quote:

"We have felt it desirable to examine the public utility district law in detail, that the legislative intent might be ascertained, not from the literal meaning of the words, `within or without,' but from the text of the statute as a whole, interpreted in the light of the general object and purpose of the act, and its legislative history."

The majority opinion then proceeds to ignore the "literal meaning of the words" and arrives at its conclusion by having recourse to what it mistakenly treats as its legislative history. I quote:

"It seems, however, to have been generally agreed that additional legislation was necessary to permit the public utility districts . . . to co-operate in taking over the facilities of one of the major power companies in its entirety, where that company operated in several counties."

"The prevalence of such beliefs would indicate that those powers have not been regarded, heretofore, as clear, certain and unambiguous." *Page 177

Back when no one supposed that the Puget Sound Power Light Company would voluntarily sell all or any part of its system, condemnation appeared to be the only way open to acquisition by the public utility districts. It is perfectly obvious that severance damages could not be avoided when suits were brought in the several counties. Certainly, further legislation was needed for the condemnation process of acquisition to be freed from these excessive damages. The majority opinion admits that a voluntary sale of the system is different from separate condemnations. I quote:

"Merely because a plan is new or the methods proposed novel and unprecedented, is no reason to condemn it."

With severance damages obviated because of the voluntary sale of the system, it is manifest that legislation as to condemnations is not needed to avoid them.

The majority opinion impugns the good faith of the public utility districts and everyone concerned in the plan by ascribing to them only an incidental purpose of serving the electric needs of their districts, and arbitrarily holds that their primary purpose is to go into the electric business in territory beyond their borders. Neither the record nor common sense warrants such a holding.

The rule of the majority opinion applied to the true facts in this case requires an affirmance of the lower court.

I dissent.

JEFFERS, ROBINSON, and ABEL, JJ., also concur with MALLERY, C.J.

August 25, 1947. Petition for rehearing denied. *Page 178