Neel v. McCook Public Power District

347 N.W.2d 554, 217 Neb. 11, 1984 Neb. LEXIS 1041
CourtNebraska Supreme Court
DecidedApril 20, 1984
DocketNo. 83-052
StatusPublished
Cited by1 cases

This text of 347 N.W.2d 554 (Neel v. McCook Public Power District) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Neel v. McCook Public Power District, 347 N.W.2d 554, 217 Neb. 11, 1984 Neb. LEXIS 1041 (Neb. 1984).

Opinion

White, J.

This is an appeal from an order of the Nebraska Power Review Board (PRB) which held McCook Public Power District (MPPD) in noncompliance with Chapter 70, article 6, of the Nebraska Revised Statutes for the reason that the city of McCook, Nebraska, is included within the charter area of MPPD. We affirm.

The parties stipulated to the following facts. MPPD is a lawfully constituted public power district which sells retail electricity. A portion of this sale of power is retail sales to six businesses and one residence located within the boundaries of the city of McCook. MPPD sells no wholesale power to McCook. MPPD owns business offices, storage facilities, inventory, and other assets with a value of over $2 million within the boundaries of McCook.

Since the inception of MPPD, the city of McCook has been within the charter area of MPPD; conse[13]*13quently, all 5,134 resident registered voters of McCook are eligible to vote for MPPD’s board of directors. There are 26,474 eligible voters in MPPD’s entire charter area. Currently three of the nine members of the MPPD board of directors are residents of the city of McCook.

Pursuant to Neb. Rev. Stat. § 70-604.05 (Reissue 1981), the appellees, Stanley Neel and Lloyd Potthoff, filed a complaint with the PRB, alleging that because MPPD has ceased to sell at least 50 percent of the retail or wholesale power requirements of the city of McCook, that city cannot be included in MPPD’s charter area. Appellees contend that the unlawful inclusion of the city of McCook in MPPD’s charter area dilutes their votes and other votes of individuals similarly situated who are justly and lawfully qualified to vote for the board of directors of MPPD.

In its reply MPPD admitted to the status of the complainants, generally denied that it is in noncompliance, and further alleged that because MPPD does sell some retail electricity within the boundaries of McCook, that city is lawfully included in MPPD’s charter.

After a hearing on the issue the PRB found MPPD in noncompliance with respect to the inclusion of the city of McCook for the purpose of the election of successors to the board of directors of MPPD. MPPD’s motion for rehearing was denied, and they took timely appeal to this court.

The sole issue on appeal is whether the city of McCook is lawfully included in MPPD’s charter area. Stated broadly, the issue becomes one of determining who has the right to vote in an election of the board of directors of a public power district. The Constitution of the State of Nebraska is silent on the issue; consequently, if such a privilege exists, it must of necessity be statutorily granted. A review of applicable provisions of Chapter 70, article 6, of [14]*14the Nebraska Revised Statutes provides us with the answer.

We begin by setting forth some of the well-established rules of statutory construction.

“Where, because a statute is ambiguous, it is necessary to construe it, the principal objective is to determine the legislative intention. . . . The legislative intention is to be determined from the general consideration of the whole act with reference to the subject matter to which it applies and the particular topic under which the language in question is found, and the intent deduced from the whole will prevail over that of a particular part considered separately.”

In re Guardianship of Sain, 211 Neb. 508, 511-12, 319 N.W.2d 100, 103 (1982).

It is a fundamental rule of statutory construction that, if possible, a court will try to avoid a construction which leads to absurd, unjust, or unconscionable results. A statute should be construed in the context of the mischief sought to be remedied and the purpose to be served. State v. Farr, 209 Neb. 163, 306 N.W.2d 854 (1981).

With these rules of construction in mind, we explore the relevant provisions of Chapter 70, article 6, of the Nebraska Revised Statutes in the order in which they appear.

Neb. Rev. Stat. § 70-601 (Reissue 1981) is the definitional section and will be referred to as needed.

Neb. Rev. Stat. § 70-602 (Reissue 1981) states in part:

A public power district may . be composed of the territory of one or more municipalities as defined in subsection (2) of section 70-601, whether contiguous or otherwise, but no city, village, or voting precinct shall be divided in the formation of a public power district. Nothing in Chapter 70, article 6 shall be construed to prevent the organization of a district within, or partly within, the territorial boundaries of another district [15]*15organized hereunder, so long as the plants, systems, and works, the operation of the same, the exercise of powers, and the assumption of duties and responsibilities, of or on the part of one district, do not nullify, conflict with, or materially affect those of, or on the part of, another district.

Subsection (2) of § 70-601 defines municipality as follows:

Municipality, when used in relation to the organization of a public power district, shall mean any county, city, incorporated village, or voting precinct in this state; but when used in relation to the election of successors to the board of directors of a public power district, as provided in sections 70-610 to 70-618, municipality or municipalities, comprising such public power district, shall be deemed automatically to be extended so as to include each incorporated city or village to which the public power district shall furnish or sell electrical energy either at retail to the inhabitants of such city or village or at wholesale to the city or village to be resold by it if the sale at wholesale is for more than fifty per cent of the power requirements of the city or village. When the public power district ceases to sell electrical energy at retail to the inhabitants of the city or village, or at wholesale to the city or village, for more than fifty per cent of the power requirements, such city or village shall cease to be a part of the public power district.

Appellant contends that the 50-percent requirement of § 70-601(2) applies only to wholesale sales of electrical energy, and because MPPD sells retail electricity, even though admittedly a minute amount, within the city of McCook, that city is lawfully included in its charter area. Appellees contend that the 50-percent requirement applies to both retail and wholesale sales of electricity, and because MPPD does not supply McCook with at least 50 per[16]*16cent of the city’s retail or wholesale electrical energy requirements, MPPD cannot include the entire city of McCook within its charter area.

The first and second sentences of § 70-601(2) seem to be in conflict. A search of legislative history concerning the provision is not helpful in resolving the conflict.

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Related

In RE BOUNDARIES OF McCOOK PUBLIC POWER DIST.
347 N.W.2d 554 (Nebraska Supreme Court, 1984)

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Bluebook (online)
347 N.W.2d 554, 217 Neb. 11, 1984 Neb. LEXIS 1041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neel-v-mccook-public-power-district-neb-1984.