STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
August 15, 1975
Mr. Emil Mueller, Counsel
Public Utilities Commission
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-139
City of Sioux Falls disagreement with Northern States Power of Minneapolis
Dear Mr. Mueller:
You have requested an opinion from this office based on the following factual situation:
The City of Sioux Falls operates the Sioux Falls Municipal Light and Power Company and that company and Northern States Power Company render electric service to customers in Sioux Falls. Recent correspondence to this office indicates that the City of Sioux Falls cannot reach a territorial agreement with Northern States Power Company because the two systems are so intertwined that the criteria for determination of service areas set forth in SDCL 49-34A-43 cannot reasonably be applied. The city contends that the Commission must follow SDCL 49-34A-44 whereas Northern States Power Company relies on the provisions of SDCL 49-34A-42 in contending that it has the exclusive right to provide electric service at retail to each and every location where it is serving a customer as of March 21, 1975. Northern States Power Company contends that any assignment of territories under SDCL 49-34A-44 cannot change the exclusive right of Northern States Power Company to continue to serve each and every location where it is serving a customer as of March 21, 1975. The City of Sioux Falls contends that such an interpretation of SDCL 49-34A will only perpetuate and solidify the line duplication.
Based on the above factual situation you ask:
In a situation where two electric utilities provide electric service within a municipality and the Public Utilities Commission finds that the existing electric lines are so intertwined that the criteria for assigning service areas in SDCL 49-34A-43 cannot reasonably be applied and the Public Utilities Commission after hearing must determine the boundaries in accordance with the guidelines fixed in SDCL 49-34A-44, how must the Public Utilities Commission interpret the intent of the Legislature to eliminate line duplication in view of the exclusive right provision in SDCL 49-34A-42?
The situation you present raises a very confusing matter for a clear and rational legal answer. On the one hand SDCL 49-34A-42 provides that each electric utility shall have the exclusive right to provide electric service at retail to each and every location where it is serving a customer as of March 21, 1975. On the other hand, SDCL 49-34A-43 and 49-34A-44 refer to the Public Utilities Commission determining the service area boundaries where the "equidistant" principle of SDCL 49-34A-44 cannot be applied. The question is thus posed as to how a utility can have exclusive rights to provide electric service at locations where they served a customer as of March 21, 1975 and at the same time be subject to revisory powers of the Public Utilities Commission in determining service areas.
It is my opinion that inasmuch as statutes in pari materia must be construed together, In re Swanson's Estate, 79 S.D. 3, 107 N.W. 2d 256 (1961) and that they must be construed so as to give effect to both as far as possible, Knudson v. Powers, 56 S.D. 613, 230 N.W. 282 (1930), the most rational analysis here is that the "exclusive right" of SDCL 49-34A-42 is "exclusive" only if the Public Utilities Commission does not reassign the location pursuant to their statutory powers to determine boundaries of assigned service areas. SDCL 49-34A-43 and 49-34A-44 would have little if any meaning if SDCL 49-34A-42 were interpreted as giving a utility the absolute exclusive right to keep all its present service locations irregardless of what the Public Utilities Commission attempted to do under SDCL 49-34A-43 and 49-34A-44. It is my opinion that SDCL 49-34A-42 does not grant such an absolute exclusive right.
Respectfully submitted,
William Janklow
Attorney General
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