2023 New Mexico Statutes › Chapter 62 - Electric, Gas and Water Utilities › Article 6 - Powers and Duties of Commission › Section 62-6-5 - Local option.

Notwithstanding any of the provisions in Section 62-6-4 NMSA 1978, any municipality desiring to avail itself of all the benefits of the Public Utility Act [Articles 1 to 6 and 8 to 13 of Chapter 62 NMSA 1978] and of the regulatory services of the commission may elect to come within the provisions of that act and to have the utilities owned and operated by it, either directly or through a municipally owned corporation, regulated and supervised under the provisions of that act. When a municipality so elects, in the manner provided in this section, it shall be subject to all the provisions of the Public Utility Act. The election shall be held as follows:
A. at any time after the effective date of the Public Utility Act, the legal voters of any municipality may petition in writing the governing body of the municipality by filing a petition in the office of the municipal clerk to hold an election for the purpose of determining whether the municipality shall be subject to the provisions of that act. If the aggregate of the names signed to the petition equals or exceeds twenty-five percent of the number of legal votes cast in the municipality for governor at the last preceding general election, the governing body of the municipality shall call an election to be held within sixty days of the filing of the petition in accordance with the provisions of the Local Election Act [Chapter 1, Article 22 NMSA 1978]. Provided, however, that if a local election is to be held within six months of the filing of the petition, the election provided for in this section shall be held at the same time as that election;
B. the election shall be held in the same manner as and with the same registration books as for other municipal elections. The ballots to be submitted to the voters at the election shall present the following questions:
"For regulation of municipally owned
utilities by the public
regulation commission ________
Against regulation of municipally owned
utilities by the public
regulation commission ________".
The votes at the election shall be counted, returned and canvassed as provided for in the Local Election Act. If the majority of all the votes are in favor of regulation of municipally owned utilities, the governing body of the municipality shall declare, by order entered upon the records of the municipality, that it is subject to all the provisions of the Public Utility Act. If the majority of all the votes are against such regulation, the result of the election shall be declared and entered in the same manner; and
C. no elections for the same purpose shall be held within two years of each other.
History:
Laws 1941, ch. 84, § 17A; 1941 Comp., § 72-505; 1953 Comp., § 68-5-5; 1993, ch. 282, § 30; 2018, ch. 79, § 100.
ANNOTATIONS
Compiler's notes.
— Sections 62-6-4 to 62-6-26.1 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 regulation of foreign municipal corporations distributing electricity in state,
see
62-1-6 NMSA 1978.
For municipal elections,
see
3-8-1 to 3-8-80 and 3-9-1 to 3-9-16 NMSA 1978.
The 2018 amendment,
effective July 1, 2018, provided that elections called for the purpose of determining whether the municipality shall be subject to the provisions of the Public Utility Act shall be held as pursuant to the Local Election Act, and made technical and conforming changes; in Subsection A, after "filing of the petition", added "in accordance with the provisions of the Local Election Act", and after "Provided, however, that if a", deleted "general municipal" and added "local"; and in Subsection B, deleted "utility" and added "regulation" preceding "commission" throughout the subsection, and after "canvassed as provided for in", deleted "general municipal elections" and added "the Local Election Act".
The 1993 amendment,
effective June 18, 1993, in the introductory language, substituted "Section 62-6-4 NMSA 1978" for "Section 17 hereof" and "may elect" for "created by this Act, shall have the right to elect" in the first sentence, and divided the former first sentence into the present first and second sentences; in Subsection A, substituted "governing body of the municipality" for "Board of Trustees or municipal council" in the first sentence, and rewrote the second sentence; in Subsection B, deleted "may be available" following "books as" in the first sentence, deleted "to the voters" following "shall present" in the second sentence, deleted "of public utilities" following "regulation" in the second sentence in the last paragraph, and substituted "New Mexico public utility commission" for "New Mexico public service commission" in two places; and made stylistic changes throughout the section.
City not within commission's jurisdiction.
— A city operating a water facility which had not elected to come under the Public Utility Act and which had a population of less than 200,000 was not a public utility within the jurisdiction of the public utility commission (now public regulation commission).
Morningstar Water Users Ass'n v. New Mexico Pub. Util. Comm'n
, 1995-NMSC-062, 120 N.M. 579, 904 P.2d 28.
Municipality may constitutionally compete with previously franchised utility.
— The action of a municipal corporation in undertaking to compete with a privately operated public utility holding a franchise previously granted by the municipality itself in no way violates any constitutional right of the utility whether the right asserted be that based upon the constitutional provision invalidating laws which impair the obligation of a contract or those relating to the taking of property without due process of law, the injuring or destroying of property without just compensation or the denial of the equal protection of the laws. 1958 Op. Att'y Gen. No. 58-236.
Section provides exception to exemption of municipalities from commission jurisdiction.
— The commission is given authority by virtue of Section 62-6-4 NMSA 1978 to regulate and supervise every private utility in respect to its rates and service regulations. This same statute specifically withholds from the commission any jurisdiction to regulate or supervise the rates or service of any utility owned and operated by a municipal corporation either directly or through a municipally owned corporation unless said municipality shall exercise its option to come within the provisions of the Public Utility Act as provided in this section. 1957 Op. Att'y Gen. No. 57-101.