The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1927-12-01
Rail Boards Order
Considered Important

/ \SVSsssANSA AAVW V0ssC OuCy
arc no. adequately served and that
the construction and operation Of a
plant by Erickson would result in
impaired service and increased
rates. They also contend that the
law required him to have certif-
icate of convenience and necessity
The opinion Of the board agreed
with the petitioners In each detail.
! AS disclosed by the record, the
board held, the fact was that Erick-
son did not enter into binding con-
tracts for the construction OF
power plant prior to July and did
no actual construction work prior
to that time. Therefore, it was held,
he comes within the jurisdiction Of
tho state railroad board under the
law which became effective. July
and an order by the commission
preventing his further activities
would be valid.
Claims Law Docs Not Apply
In addition to the constitutional
grounds upon which protest against
the law is based, Erickson Coz end
ed that the law does not apply to
him since it did not become cffec-
tive until after his contract with
the city of Kenmarc was made; that
the public utility law is not re-
troactive and would not be constitu-
tional If it were made retroactive
since it would impair certain con-
tracts.
In holding that. it has jurisdic-
ton, the railroad board reviewed the
public utility law since it first was
passed to the present time, showing
the changes which have been made
and the extension Of the powers of
the board. The new law, it is
pointed out, does not attempt to
confer upon the railroad board the
right to determine who shall use
the streets and alleys Of munich
pality but does give It control and
supervision of the operations of
~''hlic utilities under stated condi-
tions. The conditions are that no
&c. .nicate of public convenience and
necessity is necessary for COM
pany which was actually operating
prior to July l, 1927, and that the
commission has no jurisdiction over
a lawfully operating utility where
it seeks to extend its service within
municipality.
In states with constitutions SINH
lar to that of North Dakota, public
utility laws similar to the one in eff
feet in this state have been held
valid, the commission points out and
cites various legal opinions to prove
its contention.
Commenting upon the theory of
the new law and the importance Of
the decision in the Kenmarc case
the decision said: "This is the first
formal proceeding which has been
brought before US under this stat
ute. Since the conclusions we reach
will govern, in a measure, our fu-
ture actions, we desire to determine,
as near as may be possible, the in
tent Of the legislature and conse-
quently our powers and duties as
defined by the new law.
FRANCHISE is Necessary
"Since the effective date Of this
measure we have had scores Of APP
plications for certificates of con-
venience and necessity to operate
plants under franchises which were
granted prior to July 1. While
these applications were assigned for
hearing, no objections were made
and certificates were issued. We
have informally held that a fran
chise was required as condition
precedent to receiving certificate
from US and that a certified copy
Of the franchise must be filed with
the application; that franchise
was necessary in order to occupy
the streets and alleys Of munich
pality, but before the utility could
begin the construction or operation,
or exercise right under the fran
chise, It must obtain certificate
from the board of railroad commits
sioners. There is no showing in
this proceeding to justify our reach
ing Q different conclusion.
"Ip our opinion the legislature
has sought to correct long-exist-
ing evil, namely the unnecessary
duplication Of public utility proper
ty and the consequent impairment
Of service with resultant increases
In rates. The legislature has pro-
vided q method whereby Vic COM
mission ma. determine, after hear
ing, whether public convenience and
necessity require the construction
or operation of new or additional
public utility plants.
1.-THE advent Of the electric trans
mission line, extending into all Sec
lions Of the state and serving en-
tire districts instead Of small com.
munities, creates z state problem
rather than q purely local one. 1t is
apparent to US that the legislature
has recognized the necessity for
uniform regulation and has broad
ened the powers of the railroad COM
mission to meet tht changed condi-
tions.
The Commissions Duty
IF the service being furnished to
4 nauniciE atty is inadequate, or I'm.
satisfactory, or the rates exorbi-
tant, the state, through the COM
mission, may be appealed to. As
agents Of the legislature it is the
duty Of the commission to cause
trained men to analyze the opera
tions Of the public utility complained
Of and the commission must then
determine, after hearing, the rates
which should be charged and the
service which shall be furnished.
This Is all accomplished without di-
rect cost to the consumer.
According to the theory Of the
respondent. the municipality, having
control Of tho use Of it's streets and
alleys, should determine not only
who shall furnish its citizens with
electric light and power bu- should
also prescribe the rates to be
charged. TO adopt such q policy
would be to return to one Of the
early and discarded forms or regu.
al