Salt Lake County v. Public Service Commission

510 P.2d 923, 29 Utah 2d 386, 1973 Utah LEXIS 815

• Court: Utah Supreme Court
• Decided: May 21, 1973
• Docket: No. 12937
• Status: Published

Opinions

HENRIOD, Justice:

Review of the Commission’s order granting rate increases to Mountain Fuel Supply, a local gas-dispensing utility, which increases were allocable to industrial and general consumers (such as residential) on a percentage formula basis. Affirmed.

The application sought the increase as to industrial users only. After a flood of protests from the industrial users and a record of about 2500 pages having to do with gas reserves, diminishing sources of supply, etc., the Commission approved the rates requested but expanded the base not only to include general consumer participation (about $5.61 per consumer per year), but to exact an additional $1,400,000 from the consumers by raising the rates. This was done after the protests and after other hearings and after the Commission, in the interim had given adequate notice that general consumers’ rates would be an issue at a hearing before the order finally would be entered.

We think that under the particular facts of this case, where no one seemed to be victim of surprise, the Commission acted within its statutory sanction¹ and that it represented a respectable employment of foresight in protecting consumers in the foreseeable future. Viewed realistically in an atmosphere of threatened exhaustion of fuel supplies, coupled with an increasing demand for energy in an expanding economy, the Commission’s action seems to have been both reasonable and authoritative, if unassailable on account of possible constitutional interdictions anent due process.

The nub of this case is whether the Commission arrived at its destination via the constitutional route of due process (or by the suggested collusive route of preferential treatment), with the minimal essentials of due process, including satisfactory notice.

Roughly, the plaintiff here, — and we say this advisedly, — says the Commission did not treat it with purity attributed to the Constitution, but with collusion that rendered suspect its decision and procedure. We do not share the innuendo.

Plaintiff says the Commission acted unconstitutionally because: 1) of failure to give proper notice or have a hearing on the rate increase imposed on the general consumers; 2) it acted on a matter not before it; 3) it granted, without request, a $1,400,000 gratuity, and 4) it erred in a) not granting a continuance, b) not severing the cause and c) in shifting the rate load from one category to another.

We think it not unreasonable to suggest that all of the points on appeal in the last analysis merge in the first point, — -alleged denial of due process. It is significant in this respect, that the county appeared as a user and not as a representative of a class, —also that a lawyer representing a general consumer organization and an individual representing himself as a consumer, did not appeal. Nor did any of the 15 or more protestants. This would seem to narrow the issue to one: Did the county, through counsel, have notice, knowledge or a reasonable acquaintance of what was going on to satisfy the due process requirements of Art. 1, Sec. 7, Utah Constitution, and/or the 14th Amendment of the U. S. Constitution?

We think the plaintiff hardly can complain of surprise or lack of notice. The record abounds with facts reflecting that it knew what was astiring, and when, where and why it was. Opportunity to examine everything, cross-examine anyone and otherwise to become autoptic in this case, after its intervention, was granted. It absented itself from some of the hearings, and later, with permission, walked out of the last it attended, with the urgence of the Commission that counsel’s body might repose in absentia, but the county’s body politic still occupied a ringside seat in this encounter. Since plaintiff intervened, it was particeps at all times,' — and actually, before its counsel’s departure it joined in a pleading asking for the very re-allocation which it now negates.

After several hearings, and motions, and services of notices and publications and after notice given of general users’ proposed inclusion in any rate increase, a final hearing resulted in resolving the questioned allocation of rates complained of here. So far as this record is concerned, we think that fair and ample notice was afforded to plaintiff. No one else has objected to that notice or the hearing or the result thereof save the plaintiff, that, having an opportunity to have done so, neither presented any evidence supporting its position, nor advanced any meaningful effort to. cross-examine anyone.

There may have been some infirmities in the procedure here, but none that were not healed by continued hearings conducted after adequate notices given. There was no element of surprise to plaintiff, who entered this matter as an intervenor early, as a user and not as a champion for someone else, and left early without any subsequent participation in this case. To have dismissed the application as requested and to have required a repetition of this case, where everyone had notice of the general consumers’ participation in the rate increase, would appear to be a rather useless and unproductive employment of the fact finder’s function, based on the request of but one user that, having been given the opportunity to present its substantive, rather than technical case, didn’t.

CALLISTER, C. J., and ELLETT and TUCKETT, JJ., concur.

1 . Title 54-1-4, Utah Code Annotated 1953.