2023 New Mexico Statutes › Chapter 62 - Electric, Gas and Water Utilities › Article 11 - Review of Commission Orders › Section 62-11-5 - Decision on appeal.

The supreme court shall have no power to modify the action or order appealed from, but shall either affirm or annul and vacate the same. The supreme court shall vacate and annul the order complained of if it is made to appear to the satisfaction of the court that the order is unreasonable or unlawful. Proceedings in the supreme court shall be governed by the provisions of this act and by the Rules of Appellate Procedure for Civil Cases promulgated by the supreme court of New Mexico.
History:
Laws 1941, ch. 84, § 70; 1941 Comp., § 72-905; 1953 Comp., § 68-9-5; Laws 1982, ch. 109, § 14.
ANNOTATIONS
Compiler's notes.
— For the meaning of "this act",
see
62-13-1 NMSA 1978 and notes thereto.
Sections 62-11-1 to 62-11-6 of the Public Utility Act are still effective as the repeal of Chapter 62, Article 6 by Laws 1998, Chapter 108, Section 82, effective July 1, 2003 Chapter 108, Section 82 was repealed prior to taking effect by Chapter 23, Section 1, Laws 2003. Although Laws 2003, Chapter 336, Section 8, amended Laws 1998, Chapter 82, as amended, an amendment of a repealed section is ineffective.
See
Quintana v. N.M. Dep't of Corrs., 100 N.M. 224, 668 P.2d 1101 (1983). Laws 2003, Chapter 416, Section 5 also repealed Laws 1998, Chapter 108, Section 82, as amended, a second time, however, that repeal is of no effect as the section had previously been repealed by Chapter 23, Section 1, Laws 2003.
Cross references.
— For Rules of Appellate Procedure,
see
Rule 12-101 NMRA et seq.
Entire order must be annulled if part is unlawful.
— Where the court finds part of the order of the commission to be unreasonable and unlawful, it must annul the entire order. The court has no power to modify the order of the commission.
Moyston v. N.M. Pub. Serv. Comm'n
, 1966-NMSC-062, 76 N.M. 146, 412 P.2d 840.
Supreme court is limited to affirming or reversing lower court.
— Because of the form of this section (prior to the 1982 amendment), supreme court was limited in its disposition of cause to affirming or reversing the lower court, and the cause cannot be remanded to permit the commission to supply necessary findings.
N.M. Elec. Serv. Co. v. Lea Cnty. Elec. Coop.
, 1966-NMSC-046, 76 N.M. 434, 415 P.2d 556, cert. denied, 385 U.S. 969, 87 S. Ct. 506, 17 L. Ed. 2d 433 (1966).
Court is limited in its review
to determining whether the order of the commission was unreasonable and/or unlawful, whether it was supported by substantial evidence and, generally, whether the action of the commission was within the scope of its authority.
Llano, Inc. v. S. Union Gas Co.
, 1964-NMSC-257, 75 N.M. 7, 399 P.2d 646.
On appeals from administrative bodies the questions to be answered by the court are questions of law and are restricted to whether the administrative body acted fraudulently, arbitrarily or capriciously, whether the order was supported by substantial evidence and, generally, whether the action of the administrative body was within the scope of its authority. The district court may not substitute its judgment for that of the administrative body.
Maestas v. N.M. Pub. Serv. Comm'n
, 1973-NMSC-096, 85 N.M. 571, 514 P.2d 847;
Llano, Inc. v. Southern Union Gas Co.
, 1964-NMSC-257, 75 N.M. 7, 399 P.2d 646;
Public Serv. Co. v. N.M. Pub. Serv. Comm'n
, 1979-NMSC-042, 92 N.M. 721, 594 P.2d 1177.
Commission decision not upheld without substantial evidence.
— Although every inference is to be drawn in support of the commission's decision, a reviewing court may not uphold a commission's decision which is not supported by substantial evidence.
Public Serv. Co. v. N.M. Pub. Serv. Comm'n
, 1979-NMSC-042, 92 N.M. 721, 594 P.2d 1177.
Questions of fact are for commission, not court.
— Whether or not the construction had been commenced on a certain date is a question of fact to be determined by the commission.
Lone Mountain Cattle Co. v. N.M. Pub. Serv. Comm'n
, 1972-NMSC-008, 83 N.M. 465, 493 P.2d 950.
When commission's construction of certificate and statute is binding.
— The commission's construction of the certificate issued by it and the statutes governing its operation was binding on review, unless this construction was unreasonable or unlawful.
Lone Mountain Cattle Co. v. N.M. Pub. Serv. Comm'n
, 1972-NMSC-008, 83 N.M. 465, 493 P.2d 950.
Once commission's order is annulled and vacated,
a rate case is in the same posture it was in before the original decision was rendered: the commission may hold additional hearings and take additional testimony just as if the vacated order had never been entered; however, because the proposed rates may be put into effect after expiration of the initial nine-month period, the commission will have every reason to act expeditiously to enter new findings based on substantial evidence.
Public Serv. Co. v. N.M. Pub. Serv. Comm'n
, 1979-NMSC-042, 92 N.M. 721, 594 P.2d 1177.
Regulation held neither arbitrary nor capricious.
— The question of a potential for abuse in a regulation allowing company to adjust consumers' rates relative to change in the company's cost prior to the approval by the commission in that the company could negotiate contracts with its subsidiaries who supply 26% of its natural gas at favorable rates, and thereby accrue hidden profits, was a question of fact for the commission to decide, and as the commission's findings were supported by substantial evidence, this regulation was neither arbitrary nor capricious.
Maestas v. N.M. Pub. Serv. Comm'n
, 1973-NMSC-096, 85 N.M. 571, 514 P.2d 847.
Commission's finding of fact held supported by substantial evidence.
— Considering petitioner's burden of proof, the nature and extent of the evidence adduced and the qualifications of the commission in knowing and understanding what is meant by "surveys" and "construction," in the sense in which these terms are used in the construction of power transmission lines and related facilities, the commission's finding of fact was supported by substantial evidence, and it is not the province of the court to substitute its judgment for that of the commission.
Lone Mountain Cattle Co. v. N.M. Pub. Serv. Comm'n
, 1972-NMSC-008, 83 N.M. 465, 493 P.2d 950.
Commission's order held unsupported by substantial evidence.
— Where gas company seeking rate increase proposed to trend the general plant account items by using a nationally recognized index, but the commission instead inserted its own method - to simply use the untrended original cost, although the witness who strongly supported this approach admitted that he did not know whether this would accurately establish the reproduction cost of the items, the court held the commission's order was unreasonable, being unsupported by substantial evidence.
Southern Union Gas Co. v. N.M. Pub. Serv. Comm'n
, 1972-NMSC-072, 84 N.M. 330, 503 P.2d 310.
Commission's establishment of a two-tiered rate plan that allowed residential customers to elect between a higher customer access fee combined with a lower distribution charge per therm, or choose a lower customer access fee combined with a higher distribution charge was not supported by the evidence.
Attorney Gen. v. N.M. Pub. Util. Comm'n
, 2000-NMSC-008, 128 N.M. 747, 998 P.2d 1198.
Commission's order in a utility-rate proceeding was vacated and remanded because its decision on the disallowance of gas company's actual tax expenses was arbitrary, its determination of zero cash working capital was lacking a basis in substantial evidence and the amount of its award for aircraft expenses was unsupported by substantial evidence.
Zia Natural Gas Co. v. N.M. Pub. Util. Comm'n
, 2000-NMSC-011, 128 N.M. 728, 998 P.2d 564.
In its final order regarding a gas utility's requested rate increase, the commission's denial of recovery of losses on reacquired debt, the denial of the opportunity for the utility to recover reservation fees in a separate proceeding, the denial of certain settlement expenses and rate case expenses, and the dramatic increase in the residential access charge were not supported by substantial evidence.
PNM Gas Servs. v. N.M. Pub. Util. Comm'n
, 2000-NMSC-012, 129 N.M. 1, 1 P.3d 383.
Factors considered in rate hearing.
Public Serv. Co. v. N.M. Pub. Serv. Comm'n
, 1979-NMSC-042, 92 N.M. 721, 594 P.2d 1177.
Departure from prior practice without notice.
— A regulatory body cannot, without prior notice, abruptly depart from past practice on which the regulatee has relied and impose a retroactive refund requirement upon the regulatee. However, once notice was given, nothing prevented the commission from adopting a new regulatory practice and applying it prospectively; if the regulatee chose not to comply, it did so at its own peril.
Hobbs Gas Co. v. N.M. Pub. Serv. Comm'n
, 1993-NMSC-032, 115 N.M. 678, 858 P.2d 54.
Law reviews.
— For note, "The Public Service Commission: A Legal Analysis of an Administrative System," see 3 N.M.L. Rev. 184 (1973).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 73B C.J.S. Public Utilities §§ 125 to 128.