Rural Electric Co. v. State Board of Equalization

ON PETITION FOR REHEARING A petition for rehearing has been filed herein, and various statements in the original opinion herein are asserted to be erroneous, although the main reasoning of the court is not attacked. The various points contained in the brief accompanying the petition for rehearing were but links in the reasoning as a whole. It is, for instance, stated that we laid too much stress on the fact that rural electric companies in this state have taken over customers or even public utility companies, and that that was done in pursuance of requests on the part of the public utilities theretofore existing. The record shows that to be true partially. We stated in our opinion that "contact with a public utility and ability to compete with it, ought not to be ignored." In other words, we merely stated that potential competition is a factor to be taken into consideration. The authorities cited by us bear that out. Again, it is stated that since the legislature in 1941 amended the law relating to the sales tax and making it specific that rural electric companies should come within its provisions, it is shown that they did not originally come within the statute. But a controversy on that point was then pending; the trial court had held that these companies were not subject to the sales tax, and the legislature apparently, and probably at the behest of the public utility commission, made the amendment merely, so that there would be no question that from that time forth, they should not be exempt under the law, even though we should affirm the judgment of the trial court. Under these circumstances that amendment does not, we think, affect the question as to whether or not these companies are public utilities. Again, it is argued that since the legislature in 1937 by chapter 28 of the Session Laws of that year amended Section 94-145, Rev. St. 1931 by omitting the phrase "operating *Page 485 for * * * mutual benefit," we wrongly took the section as it originally read into consideration. That seems to be an afterthought. The Attorney General in his brief on appeal claimed that this section as it was originally enacted has a bearing in determining the intent of the legislature, and we find nothing in the original brief of plaintiff in answer thereto. Nor can we see the force of counsel's argument made now. The section was a part of Chapter 146, Session Laws of 1915, which provided for a public utility commission, and in which the term public utility was sought to be defined by the legislature. The intent of the legislature as to the meaning of the term must be gathered in the main, if not entirely, from the act as it was originally passed, and hence all the various parts thereof, unless, of course, material amendments had been made since that time showing a different intent. So far as we know there are no such amendments. The amendment above mentioned merely changes some of the provisions in connection with a certificate of convenience, and instead of enumerating the various companies to which it shall apply, embraces them all by the term "no public utility." That in no way indicates that the meaning of a public utility has been attempted to be changed. Again, it is argued that since no rural electric companies were in existence in 1915 or until recent times, the legislature naturally did not exclude them from the term "public utilities," as was done with some mutual telephone companies. But the law specifically provided when and under what circumstances the distribution of electricity should be exempted under the law. Rural electric companies were not excluded. Counsel have not pointed out the right, power or authority of this court to add to the provisions specifically made by the legislature, yet that is clearly what counsel would have us do. It seems clear to us that, in view of the statute as it stands, if rural electric companies want to *Page 486 be exempt from the law, they should go to the legislature, and that this court is the wrong tribunal in which to seek relief. We made an exhaustive investigation of the subject before us, as may be gathered from the original opinion, devoted weeks of time to obtain a correct solution, and we arrived at a conclusion only after pains-taking care. We fully realize that for the present at least, it may be questioned whether rural electric companies should, as a matter of public policy, come under the control of public utilities, but that public policy is for the legislature, and not for this court.

We can find no reason for a rehearing, and it is, accordingly, denied.

Rehearing denied.

RINER, Ch. J., and KIMBALL, J., concur.