(dissenting).
I respectfully dissent. In Case 2313, approval of a public utility’s transfer of facilities was conditioned upon the transferee’s offer of membership in its association to all water haulers who may require service. The propriety of the Commission’s conditional approval is not in question. In Case 2365, the Commission found that El Vadito is a public utility which is required to have a certificate of public convenience and necessity in order to continue operating a former public utility’s water supply system.
Whether El Vadito is operating as a public utility is a question of fact, not one of law. The majority opinion acknowledges the obvious: “An SPÁ association operating as a public utility would be subject to the Commission’s exclusive regulatory jurisdiction, as any other public utility would be.” As to whether the facts demonstrate that El Vadito is operating as a public utility, I would accord the decision of the Commission considerable deference because of its expertise. I deem the majority’s exercise in statutory interpretation to be largely irrelevant in deciding whether the Commission acted arbitrarily or capriciously in finding El Vadito to be a public utility.
To digress, if I were to address the statutory questions discussed in the majority opinion, I believe I would find installation of sanitary domestic water facilities to be compatible with regulation by the Environmental Improvement Division concurrently with regulation of public convenience and necessity (and rates) by the Commission. I see no “irreconcilable conflicts.” The purpose of the SPA is to improve the public health of New Mexicans through a program that provides for installation of sanitary domestic, water facilities. NMSA 1978, § 3-29-3 (Repl.Pamp.1991). The SPA does not address service, rates, or the transfer of facilities by an existing public entity. That is the responsibility of the Commission. By its current specific exemptions regarding municipalities and tenants or employees of a system owner, the legislature has shown that it knows how specifically to exempt certain types of associations from regulation by the Commission. Prior to 1967, rural electric cooperatives were expressly excepted by statute from regulation by the Commission, but those statutes were repealed by the enactment of Section 62-3-2. The repeal of that exemption further indicates the legislature’s intent to make essential utility services (other than those specifically exempted) subject to Commission regulation.
The majority correctly states that: “Whether El Yadito became a public utility by selling water to non-member water haulers depends upon whether providing water to the water haulers constituted furnishing water service to the public, within the meaning of the Public Utility Act.” The majority defines a public utility as a business engaged in service to the public as distinguished from service to particular individuals; it holds that El Vadito is not a public utility because its “sale of water to its pipeline membership and to a small group of non-member water haulers fails to manifest a readiness to serve an indefinite public.” However, the opinion notes that “El Vadito ... intended to assume CWIC’s responsibility for supplying water to the community.” (Emphasis added.) The opinion concludes with the acknowledgement that water haulers who are members of the Cerrillos community “must be afforded the opportunity to become members of El Vadito under the same membership criteria as that applied to members served by El Vadito’s pipeline.” Apparently, no member of the public requiring service is to be excluded. A duty to serve water haulers who reside in the rural areas surrounding Cerrillos and who depend exclusively upon the El Vadito water system evinces that El Vadito is a corporation which supplies service to the public as distinguished from particular individuals.
I am inclined to believe that the definition of a public utility as adopted in the circulating opinion is not sufficiently precise. I would prefer the language from Griffith: “[I]n order to preserve the public welfare, any person not engaged solely in interstate business, who operates a facility which supplies water to the public for domestic use, is a public utility unless he supplies water only to himself, his tenants, or his employees.” Griffith v. New Mexico Public Serv. Comm’n, 86 N.M. 113, 115, 520 P.2d 269, 271 (1974). Griffith also quotes helpful language from Socorro Electric Cooperative, Inc. v. Public Service Co., 66 N.M. 343, 347, 348 P.2d 88, 90 (1959). Public or private character depends on “whether or not [the enterprise] is open to the use and service of all members of the public who may require it, to the extent of its capacity.” Griffith, 86 N.M. at 115, 520 P.2d at 271. A water system is for the public use whenever service is “to sufficient of the public to clothe the operation with a public interest.” Id. at 116, 520 P.2d at 272. I would echo the proposition that: “the true criterion by which to determine whether a ... system is a public utility is whether or not the public may enjoy it. of right or by permission only.” 73B C.J.S. Public Utilities § 3, at 132 (1983); Junction Water Co. v. Riddle, 108 NJ.Eq. 523, 155 A. 887, 889 (Ch.1931) (same).
In Rural Electric Co. v. State Board of Equalization, 57 Wyo. 451, 120 P.2d 741 (1942), the court stated that: “In order that an owner of an electric plant may be said to be a public utility, his or its property must be devoted to public use.” Id. at 747. Such intent to devote to public use could be shown by the following factors: whether the association or corporation supplies a commodity to the public; the character of the service — whether it is a necessary commodity; whether the public enjoys the service by right or by permission; the monopoly of the service; and the corporation’s exercise or right of eminent domain.1 Id. at 751. The Wyoming court stated that a corporation that services such a substantial part of the public as to make its rates, charges, and methods of operation a matter of public concern, welfare, and interest subjects itself to every characteristic of a public utility. Id. Griffith echoes this principle. Since an SPA association is legislatively created; the project is financed with public monies; the association is given the power, with NMEID approval, to exercise eminent domain; and the public by statute has a right to demand service, it is clear to me that SPA associations are public utilities. Under the appropriate definition, I do not believe the Commission acted arbitrarily in deciding that El Vadito fell within the scope of its authority.
. In New Mexico, the taking of property 115 New Mexico — 27 through eminent domain is permitted for none other than a public use. Kaiser Steel Corp. v. WS. Ranch Co., 81 N.M. 414, 416, 467 P.2d 986, 988 (1970). In Bookhart v. Central Electric Power Cooperative, Inc., 219 S.C. 414, 65 S.E.2d 781 (1951), the court stated that if a cooperative has express powers of eminent domain, it inevitably results in the obligation to reasonably render nondiscriminatory service. The court found that just because the co-op furnished service only on the basis of membership did not preclude it from being a public utility since such members constituted the "public" of such rural areas. Id. 65 S.E.2d at 784.