Public Utilities Commission v. Colorado Interstate Gas Co.

351 P.2d 241, 142 Colo. 361, 1960 Colo. LEXIS 676

• Court: Supreme Court of Colorado
• Decided: April 11, 1960
• Docket: 19227
• Status: Published

Opinions

Mr. Justice Hall

delivered the opinion of the Court.

On April 12, 1954, the Public Utilities Commission of the State of Colorado, herein referred to as PUC, on its own motion, entered an ex parte order, amended May 12, 1954, nunc pro tunc as of April 12, 1954, directing itself to make an investigation to determine whether the Colorado Interstate Gas Company, herein referred to as Interstate, was conducting its business unlawfully in that it was operating as a public utility without having applied for and obtained from PUC a certificate of public convenience and necessity and without complying with the statutes of the state of Colorado governing public utilities. Said order further provided that Interstate, on or before June 15, 1954, show cause why an order should not be entered by PUC directing it to desist from further activities in Colorado until such time as it might acquire from PUC a certificate of public convenience and necessity.

On June 14, 1954, Interstate filed its answer to the above show cause order and therein sets forth that it is an interstate pipeline company, and that since 1938, at which time the Federal Natural Gas Act was adopted, its activities, except for certain direct, negotiated sales to some industrial consumers, referred to as “direct sales,” have been and now are under the exclusive jurisdiction of the Federal Power Commission, herein referred to as FPC, and are by it. regulated as to rates and facilities; that in making direct sales it is not a public utility and in fact its status, that of one engaged in interstate commerce and regulated by FPC, precludes it from acquiring public utility status in making “direct sales.”

On June 14, 1954, Citizens Utility Company, herein referred to as Citizens, a PUC certificated gas utility company, serving customers in the Arkansas Valley, intervened in the matter then pending before PUC, and requested permission to show the feasibility of its serving four customers, namely, (1) American Crystal Sugar Company, at Rocky Ford; (2) Holly Sugar Company, at Swink; (3) Atchison, Topeka and Santa Fe Railway Company, at La Junta, and (4) Veterans Administration (Hospital), at Fort Lyon, all located in Citizens’ territory and then being served by Interstate through direct sales.

On November 1, 1954, the Colorado Fuel and Iron Company, herein referred to as C. F. & I., intervened for the purpose of offering evidence to establish the fact that Interstate is a public utility and subject to regulation. C. F. & I. expressly stated that it sought no affirmative relief.

On November 8, 1958, hearing was had and testimony taken in support of the contentions of PUC, the two intervenors and Interstate. On January 19, 1959, PUC made extensive findings and concluded that Interstate: “ * * * is and has been a public utility within the meaning of the definitions of the statutes of the State of Colorado, and is therefore subject to the jurisdiction of the Public Utilities Commission of the State of Colorado.” (Emphasis supplied.)

PUC further ordered Interstate to forthwith apply to PUC for a certificate of public convenience and necessity to operate as a public utility for the sale of gas not for resale in Colorado, gas not under the jurisdiction of FPC. Petition for rehearing was filed by Interstate with PUC, and it was by PUC denied on the day filed.

Interstate petitioned the District Court of El Paso County for review by certiorari. At that time the district court permitted the City of Colorado Springs and Public Service Company to intervene in the certiorari proceedings. On such review the district court made its own findings of fact and held that Interstate is not and has not been a public utility subject to regulation by PUC.

Plaintiffs in error are here seeking reversal of the judgment of the district court and affirmance of the decision and order of PUC.

At the outset we note that the district court in proceedings of this nature is limited to affirming or reversing the decision of the commission and has no authority to make new findings, and our opinion is in no manner predicated on the findings of the district court, nor are they to be considered as an adjudication of the matters therein recited.

There is little, if any, conflict in the evidence, which covered a wide area.

PUC in its decision made a twenty-page statement in which it reviewed the evidence and made various and sundry deductions as to the import thereof, and this statement was made a part of the formal findings, wherein it was decided that Interstate is and has been a public utility subject to the jurisdiction of PUC.

PUC in its statement correctly sets forth that the evidence shows that Interstate is a natural gas pipeline corporation, transmitting gas from Texas, Oklahoma and Kansas, serving most of the major cities on the eastern slope of Colorado; that gas sales to said cities for resale are subject to the jurisdiction of FPC; that it also sells gas to eleven customers, who use the gas for their own needs and purposes, called direct sales, and which sales are not subject to the jurisdiction of FPC, the sales being made pursuant to individual contracts with each customer. These customers are: (1) The Veterans Hospital at Fort Lyon; (2) The A.T. & S.F. Ry. at La Junta; (3) The Holly Sugar Company, at Swink; (4) The American Crystal Sugar Company, at Rocky Ford; (5) The Colorado Fuel and Iron Company, at Pueblo; (6) The Ideal Cement Company, at Portland; (7) The Pabco plant at Florence; (8) Fountain Valley School near Colorado Springs; (9) Public Service Company, Denver; (10) The City of Colorado Springs, and (11) The City of Trinidad — the last three purchase gas for resale and, in addition, gas for their own use as boiler fuel.

All gas sold by Interstate, direct sales of gas, and gas sold to utilities for resale, is carried in one pipeline system, and all gas is commingled.

PUC further states that C. F. & I., since 1928, has been using gas purchased from Interstate under contract at its steel mills in Pueblo; that in 1953, on expiration of its contract with Interstate, in seeking to negotiate á new contract, Interstate insisted on increasing the price of gas from 12%^ per mcf, for gas with a heating value of 994 BTU, to 18( per mcf, for gas with a heating value of 963 BTU, being a price increase of 67%, amounting to an estimated annual price increase of $786,000.00 in the fuel bill of C. F. & I.; that it would cost C. F. & I. $2,000,000.00 to convert from gas’ to other types of fuel, and if deprived gas by Interstate it would result in an immediate 40% loss of production of steel, and that the cost of other types of fuel available would be about double the 18 (¡5 cost of gas. PUC also stated that C. F. & I. employs in the Pueblo, Trinidad and Salida areas about 10,000 persons, and that some 100,000 people in the Pueblo area purchase their gas from Pueblo Fuel and Gas Company, a public utility regulated by PUC. The Commission notes that Pueblo Fuel and Gas Company is not an active competitor with Interstate for the C. F. & I. business, though the cost of running a line from its system to the C. F. & I. plant would be relatively small.

Then follows a statement that the Veterans Hospital, A. T. & S. F. Ry., Holly Sugar Company and Crystal Sugar Company are all within the service area of the intervenor, Citizens, and that its predecessor had options from Interstate in 1930 to acquire these customers, which options were not exercised within the periods of time for which granted, and that in 1950 Citizens sought to exercise the long since expired options, but Interstate refused to sell its facilities and relinquish the customers so served to Citizens, on the ground that during this long period of time the same had become an integral part of Interstate’s business.

The statement next deals with sales to one of its oldest direct sales customers, Ideal Cement; and Pabco, its most recent customer. (There was no evidence with reference to Ideal Cement Company and no findings with reference to its dealings with Interstate). PUC states that Plateau Natural Gas Company, a regulated gas company, serving the Florence area, had aggressively, but unsuccessfully, endeavored to obtain the Pabco account away from Interstate.

PUC further states that the prices charged on the direct sales to all customers, except Public Service and Trinidad, was 21^ and to those two 18?5, the reduced rate to Public Service being because of volume consumed, and the reduction to Trinidad because it constructed and maintained its own thirty-two mile pipeline leading from the main transmission line of Interstate to Trinidad.

Then follows ten pages of argument in which PUC seeks to analyze the effect of this evidence in determining the utility status of Interstate. Interposed is a further factual observation of PUC that Metropolitan Denver has a population of about 800,000; Colorado Springs, 125,000, and Trinidad 15,000, and that these populations are dependent upon electricity generated in large part by gas purchased from Interstate pursuant to contracts dictated by Interstate, the sales not being subject to regulation by FPC.

Much of the balance of the findings of PUC is argument supported by authority leading up to PUC’s order directing Interstate to apply for a certificate of public convenience and necessity authorizing it to operate in Colorado as a public utility. The above findings of fact are well supported by the evidence.

The evidence further shows that since 1928, Interstate has been engaged in the business of acquiring natural gas in Texas and other areas and transporting the same to the eastern slope of Colorado for sale and consumption. Prior to construction of its main pipeline, Interstate negotiated with C. F. & I., looking toward the sale to C. F. & I. of a very large volume of gas to be used in its Pueblo steel mills. From the evidence it appears that obtaining this business from C. F. & I. may well have been the controlling factor as to whether construction of the pipeline was at that time feasible. On or before completion of its pipeline, Interstate entered into a written contract with C. F. & I. for the purchase and sale of specified quantities of gas at negotiated prices set forth in the contract. This contract was for a period of five years and has been renewed periodically with negotiated changes in quantities, prices, the amount of “firm gas” to be purchased, etc. On June 17, 1953, Interstate’s contract with C. F. & I. expired and it was not then renewed for the reason that Interstate and C. F. & I. could not agree on prices. There is nothing in the record to indicate that either party ever gave thought to or mention of the fact that Interstate might be a public utility, subject to control by PUC with reference to rates, facilities and financing. The parties dealt with each other at arms length and as corporations engaged in private business.

Interstate’s dealings with Colorado Springs began in 1930. The business conducted was of a dual nature: (a) purchase of gas for resale, and (b) purchase of gas for boiler fuel pursuant to a negotiated contract entered into in 1931.

Interstate has, since October 1930, been supplying Ideal Cement Company with gas at its Portland plants. All sales have been pursuant to negotiated contracts. Ideal, though notified of the proceedings before PUC, made no appearance.

Fountain Valley School, a very small consumer, previous to 1943 was served by Arkansas Natural Gas Company. In 1943 Arkansas ceased operations and since that time Interstate has supplied Fountain Valley’s needs on a firm basis. This service is primarily an accommodation by Interstate, which Fountain Valley is happy to have.

May 22, 1929, Interstate entered into contracts with American Crystal Sugar Company to supply its Rocky Ford plant. On November 23, 1929, Interstate entered into a contract with the A. T. & S. F. Ry., to supply its gas needs at La Junta, and on August 19, 1929, Interstate entered into a contract with the United States of America to supply the gas needs of the Veterans Hospital at Fort Lyon, Colorado. Each of these three consumers was in the area being served by Citizens, a Colorado regulated public utility company.

In 1941, Interstate, after some ten years of negotiation, entered into a contract with the Holly Sugar Corporation to supply its gas needs at its Swink, Colorado, plant. This commitment by Interstate involved installation by Interstate of an additional compressor station and other expansions of facilities. Actual service was delayed until 1943 because of the war scarcity of needed expansion materials.

In December 1955, Interstate entered into a contract with Pabco to supply its gas needs at Florence. Pabco is in the area served by Plateau Natural Gas Company, a Colorado regulated public utility, and exercised its choice of obtaining gas from Interstate on a negotiated contract rather than from the regulated utility serving the area.

In 1928 Interstate entered into a contract with Public Service to supply its gas needs for boiler fuel and resale. In 1946 the 1928- contract was amended and extended until February 14, 1967. Public Service used no gas for boiler fuel until 1947. From 1947 until July 8, 1953, Public Service accounted to Interstate for its boiler fuel gas on the basis of FPC rate schedules. On July 8, 1953, Interstate and Public Service entered into a year-to-year contract for purchase of its boiler fuel gas.

In 1931, Interstate entered into a five-year contract with Colorado Springs to supply it with boiler fuel gas; after the five years had expired, the contract was renewed by letters year after year until Colorado Springs began to purchase at the 1-1 rate. In 1953 they entered into a new boiler fuel gas contract.

On January 1, 1952, Interstate and the City of Trinidad entered into a boiler fuel contract at three cents less than Colorado Springs and Public Service.

The only question before PUC was whether Interstate was at the time of the hearing on November 8, 1958, a public utility. That is the question now before us. If it is a public utility, it is the duty of PUC to regulate it in conformity with statutory directions.

Though in no manner controlling in resolving this question, it is interesting to note that Interstate had, for twenty-six years, operated in Colorado in supplying gas for sale and for direct use to nine of the eleven customers being served at the time complaint was filed in 1954. These operations were known to PUC. In 1933 proceedings similar to these were initiated against Interstate and resulted in a final decision by PUC to the effect that Interstate was not a public utility. From the date of that decision in 1933 until the commencement of this proceeding in 1954, no steps have been taken by PUC to regulate any of Interstate’s activities. It is of further interest that none of Interstate’s eleven direct sales customers ever complained to PUC of Interstate’s activities. Further, it is noted that only one direct sale customer, C. F. & I., intervened in the proceedings instituted by PUC, and this in spite of the fact that written notice of the time and place of the hearing was given to all eleven direct sale customers and numerous other persons and firms, including the Denver Post and the Rocky Mountain News. Not until review of PUC’s order on certiorari by the district court did Public Service and Colorado Springs seek to intervene, and they were then granted the very dubious right to intervene at that stage of the proceedings.

By reading PUC’s twenty-page decision, it is quite apparent that PUC, in concluding that Interstate in its direct sales business is a public utility “within the meaning of the definitions of the statutes of the State of Colorado” and subject to regulation, found inadequate and ignored the statutory definition of public utility and also ignored standards set forth in pronouncements of this court for determining public utility status.

PUC, in its findings, states:

“The most logical procedure is to seek the definition of the statute. This, however, is of little help since the statute merely reiterates the classical phrases used to describe a public utility, viz., ‘supplying the public’ . . . ‘for public uses,’ or a corporation declared by law to be ‘affected with a public interest.’ When one seeks to accord meaning to the terms employed in the statute, viz., ‘supplying the public,’ ‘public uses,’ or ‘business affected with a public interest,’ we are immediately faced with the uncertainty and confusion that has existed from time immemorial in determining what businesses are for a ‘public use’ or are ‘affected with a public interest.’ ”

PUC then proceeds to show that these tests are without merit and one by one discards them as follows:

The test: “Affected with a public interest” —

“ * * * the use of these terms tends to become only a convenient expression for describing those businesses,, regulation of which has been permitted in the past.

The “public use” concept is discarded as meaningless. As a test:

“Readiness and willingness coupled with a present ability to serve the public” meets with disfavor of PUC. Likewise, the concept of “dedication of facilities to serve the public” is frowned upon. PUC, preparatory to pronouncement of its own tests, says:

“The only conclusion that can be reached when one seeks to find meaning in the language in the statutes of Colorado by examining historical precedent is that there have emerged no clear-cut distinctions or identifying characteristics which infallibly divide public utilities from ordinary types of business enterprises. The most that can be said is that there clearly has been a firm, steady and progressive evolution in the climate of opinion in the regulatory field from the days of Lord Chief Justice Hale in De Portibus Maris, 1 Hargrove Law Tracts 78, in the 17th century through Munn v. Illinois, 94 U.S. 113, 24 L. Ed. 77 (1877) down through the series of decisions that have been enunciated in the 20th century.”

PUC promulgated its own test for determining public utility status:

“Thus, it is our conclusion, when we take into consideration the language of the Colorado statutes, the historical significance of the words employed in the light of decisions of other Courts and the common meaning according to these words by both the ordinary and legal lexicographers, that the activities of a company, and the company itself, must be adjudged to be or not to be a utility on the basis of the totality of the consequences of its activities vis-a-vis the public. That is to say, we must judge the nature of the service rendered — (1) whether a natural or virtual monopoly, (2) the exorbitance or reasonableness of the charges, (3) the arbitrary control to which its customers may be subjected, (4) whether or not the impact of its service, or the lack thereof, to a class of customers affects the state or community, (5) and whether the services rendered are needful and cannot be surrendered without obvious general loss and inconvenience.” (Emphasis and numbering supplied.)

At the outset we observe that this test is new and novel. Presumably it is adopted to provide a yardstick with which public utility status can be measured and to avoid:

“ * * * uncertainty and confusion that has existed from time immemorial in determining what businesses are for a ‘public use’ or are ‘affected with a public interest.’ ”

This test is made up of several elements. Whether one, a majority, or all of these elements must be present in order to have utility status is not clear. The rule can be of great convenience. To one seeking to apply it there is afforded a flexibility that approaches infinity. As a guide to a business seeking to attain or avoid public utility status, it might well be considered as uncertain and confusing.

We now consider these five elements of PUC’s rule:

(1) “ * * * natural or virtual monopoly.” PUC found that the question of natural monopoly “is nonexistent in this case.” It did not decide that Interstate has a virtual monopoly — nor from the record could it so decide. Nine (all except Pabco and Trinidad) of the direct sales customers had used coal for their operations prior to the coming into being of Interstate. Four of those nine are no longer served by Interstate. Three of them had manufactured gas from coal. Public Service and Trinidad are not only equipped to use coal, but are using coal for boiler fuel. There is nothing in the record to indicate whether Ideal Cement is presently equipped to- use coal — they did not appear, or offer or request anything. Fountain Valley and Colorado Springs are equipped to use oil in place of gas. Pabco and C. F. & I. are each located within easy reach of gas to meet their requirements which can be purchased through regulated utilities; thus to them is available gas which is twice regulated as to price and facilities.

In view of the above, it is understandable that PUC proceeded with extreme caution and said:

“If conditions of virtual monopoly exist, we believe that there is but little question that the state has authority to require a utility in substance, to be so in form.”

The next element in the rule is:

(2) “the exorbitance or reasonableness of the charges.”

This record is devoid of any testimony touching on the “exorbitance or reasonableness” of charges made by Interstate. True, there is testimony that Interstate has raised its rates materially over a period of twenty-six years, and a partial explanation for this increase is the uncontradicted testimony that Interstate is paying 18$ for some gas now purchased, whereas in earlier days it purchased some gas for as little as 4:$. Higher prices for commodities and services are not an entirely new or surprising phenomenon. Evidence of a price increase, if it has any value to establish reasonableness of price, is negligible. Hence the finding of utility status cannot be predicated on this element of the rule.

The next test:

(3) “the arbitrary control to which its customers may be subjected.”

The record does not disclose any arbitrary control by Interstate over its customers. Interstate’s control over its customers is limited to its contractual rights. Likewise, each customer had control over Interstate to the extent of the contractual rights and duties of the parties. Neither has any arbitrary control over the other; their rights and duties are all evidenced by negotiated contracts. Interstate has at all times reserved unto itself the right to determine who it will serve and on what basis. Such policy pursued over a period of twenty-six years is contrary to all concepts of a public utility.

The next element in the test is:

(4) “whether or not the impact of its service, or the lack thereof, to a class of customers affects the state or community.”

The test furnishes PUC with a rule of convenience or at least a convenient rule on which to predicate its finding that Interstate is a public utility and to defy anyone to question the correctness of the conclusion. The test can be applied subjectively only. There are no objective criteria for applying the test. How does one measure “the impact of its services?” Is it measured in tons, horsepower, light years, dollars, or millimeters? What is a class of customers? In the case of Interstate it had as customers, a steel mill, a private secondary school, two beet sugar factories, a veterans’ hospital, a railroad, a cement manufacturer, a manufacturer of fiber board paper products, a public utility generating and distributing electricity and two municipal power plants. If such a group can be called a class, it is difficult to conceive of any group of eleven customers that do not constitute a class. Certainly, any business seeking to conduct its affairs in such manner as to avoid becoming a public utility under PUC’s announced rule could never have any worthwhile opinion as to its then status. Only PUC, applying its own subjective tests, could supply the answer.

The last test is:

“whether the services are needful and cannot be surrendered without obvious general loss and inconvenience.”

It can readily be assumed that the services are “needful” — business people are not prone to contract for unneedful services. General loss? What kind of loss? Dollars and cents? By whom? Inconvenience? To whom? Is it meant that Interstate cannot refuse to renew its contractual services because in so doing it would inconvenience its erstwhile customer?

We find no precedent for the rule as announced by PUC. It contains no standards whereby it could be applied with any degree of uniformity; it furnishes no guide whereby the supplier or the customer could determine the utility or nonutility status of the supplier.

PUC’s criticism of rules in general use in determining utility status is not without merit. The tests of “public use,” “dedication of facilities,” “holding forth,” “willingness to serve,” etc., are not easy of application to any set of facts; they may lead to uncertainty and confusion. Be that as it may, the legislature has spoken and this court has spoken in terms of general usage in public utility parlance.

C.R.S. ’53, 115-1-3, provides:

“Public utility defined. The term ‘public utility,’ when used in articles 1 to 7 of this chapter, includes every * * * pipe line corporation, gas corporation * * * operating for the purpose of supplying the public * * * and every corporation, or person now or hereafter declared by law to be affected with a public interest, and each thereof, is hereby declared to be a public utility * * * .” (Emphasis supplied.)

Admittedly, this definition of a public utility leaves much to be desired. However, it does say in no uncertain terms that one must be “supplying the public.” It is well settled that those words mean all of the public within its capacities —it means indiscriminately. In this statute adopted in 1913, now remaining and unchanged for forty-seven years, none of the tests promulgated by PUC appear.

Turning now to the pronouncements of this court:

In City of Englewood v. Denver, 123 Colo. 290, 229 P. (2d) 667, this court said:

“We find little need to enter into a lengthy discussion of what is or what is not a public utility, because we would ultimately apply the almost universally accepted test, which summarized is, that to fall into the class of a public utility, a business or enterprise must be impressed with a public interest and that those engaged in the conduct thereof must hold themselves out as serving or ready to serve all members of the public, who may require it, to the extent of their capacity. The nature of the service must be such that all members of the public have an enforceable right to demand it. Application of this test to the facts before us reveals that this extraterritorial supply of water is on a nonutility basis, and in so operating, under express statutory authority, it can collect such charges therefor and make such conditions and limitations as it may impose, all without liability of any vested right for a continued sale or leasing thereof.” (Emphasis supplied.)

In Colorado Utilities Corporation v. Public Utilities Commission, et al., 99 Colo. 189, 61 P. (2d) 849, this court said:

“Is Moffat Coal Company, under the facts presented, a public utility within the meaning of the Public Utilities Act? * * *

“ * * * Moffat Coal Company made no dedication of its property or any part thereof to a public use; it made no offer, and did not hold itself out, to serve the public as a public utility as such term is used in the statute above mentioned, but on the contrary steadfastly refused to engage in such operations as would bring it within the public utility classification.” (Emphasis supplied.)

In Parrish v. Public Utilities Commission, 134 Colo. 192, 301 P. (2d) 343 (1956), this court said:

“ * * * There is absolutely no evidence to the effect that Cobb at any time held himself out to serve the public indiscriminately on any determinable basis. * * *. We find no contention herein that plaintiffs or the public can have the use of Cobb’s pipeline facilities as a matter of right, and that they, as well as the public, are in no position to demand the service. The service to each customer is a permissive service, which creates the distinction between a public utility or a private carrier. The record discloses no suggestion of a dedication of the pipe line by Cobb to the public service, and, as was determined in Englewood v. Denver, supra, this can never be presumed, but must be supported by evidence of an unequivocal intention to make such dedication. * * *.

:¡: *.

“Under our statute defining public utilities, Cobb’s pipe line operations must be impressed with the public interest. That it is not so impressed is readily determined by the fact that plaintiffs here, and the public, have no right to demand the service. * * *. It is reiteration of the principles laid down in the Englewood case, supra, to say that Cobb and his operations could be classified as a public utility, he must hold himself out as serving, or ready to serve, all members of the public who may require it. We have no testimony to the effect that Cobb ever made any semblance of an offer to serve the public.” (Emphasis supplied.)

PUC and intervenors cite three cases from other jurisdictions which deal with the public utility status of natural gas pipelines and which cases they contend should be persuasive, if not conclusive, of the issues presented in the case at bar. In each of those cases the statutory definitions of a public utility and the problems presented are so at variance with the Colorado statute and the factual situation before us that we find them of little value in resolving the questions before us.

The first case, Industrial Gas Co. v. Public Utilities Commission of Ohio, 135 Ohio St. 408, 21 N.E. (2d) 166, deals with a gas company whose operations are all intrastate. It was serving nineteen industrial consumers and twelve private consumers. The Ohio statute defined a public utility as anyone:

“ * * * engaged in the business of supplying natural gas for lighting * * * to consumers * * *.” or:

“ * * * in the business of transporting natural gas through * * * pipes or tubing.”

The question before the court was not whether Industrial Gas Company came within the terms of the statute, but whether the statute was valid. No one could or did contend that Industrial Gas Company was not a public utility as defined by the Ohio statute.

In Public Service Commission v. Panhandle Eastern Pipe Line Co., 224 Ind. 662, 71 N.E. (2d) 117, the court found that Panhandle Eastern, an interstate operator, in supplying gas to numerous customers for resale, and to two direct sale customers, came within the terms of a statute defining a public utility as:

“ * * * every corporation that now or hereafter may own, operate, manage or control any * * * plant or equipment * * * for the transmission, delivery or furnishing of heat, light, water or power * * * either directly or indirectly to or for the public * * * (Emphasis supplied.)

Clearly Panhandle owned and controlled facilities for transmitting gas which eventually reached and was used by the “public.” It indirectly served the public. Here again we have a statute and definition so at variance with the Colorado statute and definition as to be of no help in the instant case.

In Panhandle Eastern Pipe Line Co. v. Michigan Public Service Commission, 328 Mich. 650, 44 N.E. (2d) 324, the question was not whether Panhandle was a utility, but father the question whether the Public Utilities Commission had jurisdiction over sales of a commodity moving in interstate commerce. Here again we have a statutory definition of a public utility which bears no resemblance to the Colorado statute. The Michigan statute defines a “public utility” as:

“ * * * persons * * * owning or operating in this state equipment or facilities for producing, generating, transmitting * * * gas * * * for the production of light, heat or power to or for the public for consumption.”

Interstate relies upon Mississippi River Fuel Corporation v. Illinois Commerce Commission, 1 Ill. (2d) 509, 116 N.E. (2d) 394, as supporting its contention that it is not a public utility. The definition contained in the Illinois statute is similar to that contained in the Colorado statute in that each makes service to the public the controlling factor. Illinois uses the words “for public use” whereas Colorado uses the words “operating for the purpose of supplying the public.” In holding that Mississippi was not a public utility, the Supreme Court of Illinois, in a five to two decision, stated:

“It seems clear to us that Mississippi has consistently and with great care confined its industrial gas sales to specific and selected customers, and has done no act by which it has given the reasonable impression that it was holding itself out to serve gas to the public, or to any class of the public, generally. * * *.

“Under these circumstances, the circuit court was right in holding that the company’s action in selling gas to a limited group of industrial customers cannot properly be characterized as the devotion of its property to ‘public use,’ within the meaning of the Public Utilities Act of this State.”

PUC and intervenors further urge that Interstate in the exercise of rights of eminent domain, filing certain certificates with the Secretary of State of Colorado, and obtaining from FPC required certificates of public convenience and necessity, has declared itself to be a public utility and apparently hope that this court will consider such declarations as conclusive on the question of public utility status. PUC has repeatedly rejected the contentions now presented to us with reference to these questions. We reject them. A company does not become a public utility by a declaration, or a hundred declarations, to that effect, nor does it avoid becoming a public utility by disavowing such purpose.

We conclude that Interstate is not a public utility as defined by statute, nor within the meaning of tests laid down by this court in construing said statute.

The judgment of the district court, insofar as it holds that Interstate is not a public utility and that PUC did not regularly pursue its authority and its order is not just or reasonable or in accordance with the evidence, is affirmed and the cause remanded to the trial court for the purpose of an order directing PUC to vacate and discharge its show cause order directed to Interstate and dated April 12, 1954, as amended May 12, 1954.

Mr. Justice Moore and Mr. Justice Doyle dissent.

Mr. Chief Justice Sutton not participating.