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. 75-140

Jurisdiction of Commission to process requested increase by Northwestern Public Service Company

Dear Mr. Mueller:

You have requested an official opinion from this office based upon the following factual situation:

A rate increase was requested by Northwestern Public Service Company by the filing of new rate schedules with the commission on July 17, 1975, to become effective September I, 1975. As of March 21,1975, and at the present time, Northwestern Public Service Company is in litigation with municipalities represented by the South Dakota Electric Consumers, a public consortium of the cities of Aberdeen, Chamberlain, Huron, Mitchell, Redfield, Webster, and Yankton. The litigation involves proposed rate increases filed with the municipalities prior to March 21, 1975.

Based on the above factual situation, you ask:

Does the Public Utilities Commission have jurisdiction to process a request of Northwestern Public Service Company for an increase in rates for electric service to customers in South Dakota in view of the above facts?

Section 60 of Chapter 283 of the Session Laws of 1975 provides as follows:

Provided, however, that nothing in this Act shall be construed to affect the ultimate decision relating to applications for rate changes pending before any duly constituted municipal authority on March 21, 1975, until the final determination is made by such municipality or a judicial determination related thereto, whichever is later. The above provision shall in no way limit the authority of the Public Utilities Commission to exercise its authority including the regulation of rates, after the effective date of this Act.

It is my opinion that the first sentence of Section 60 cited above prohibits the Public Utilities Commission from taking jurisdiction of rate increase requests relating to those municipalities where there was a rate change pending before a duly constituted municipal authority on March 21, 1975 and a pending final determination related thereto has not been rendered. The Public Utilities Commission is not presently prohibited, however, from taking jurisdiction of a rate increase request from Northwestern Public Service relating to areas where there was not such an application existing before a municipal rate making authority on March 21, 1975.

I am aware that Section 60 cited above is somewhat confusing and seemingly inconsistent in its language. In interpreting such a statute there are rules of statutory construction which provide guidance and assistance. The primary and fundamental rule of statutory construction is to determine and give effect to the intention of the Legislature, Watertown Independent School District #1 of Codington County v. Thyem, 83 S.D. 309,159 N.W. 2d 122 (1968). This means then, that the first sentence of Section 60 must be interpreted as having been put into the bill for some specific purpose.

It is my judgment that the Legislature intended Section 60 to protect the integrity of rate hearings pending before municipal rate authorities as of March 21, 1975. The municipalities who had such hearings pending as of that date had invested significant resources in the investigation and conduct of these hearings prior to March 21, 1975, and did not want that effort to be completely negated by the new provisions of Senate Bill 261 (Chapter 283 of the Session Laws of 1975). I personally attended the committee hearings on this bill and specifically recall that representatives of both the municipalities and power companies agreed that this provision (Section 60) would allow the municipalities to complete their rate hearings in progress as of March 2 I, 1975. For this reason, the provisions of the first sentence of Section 60 do, in my opinion, have significance and must be given effect. The answer to your question, therefore, is NO with respect to setting rates for municipalities where there was a rate change pending as of March 21, 1975, and where that hearing or judicial determination relating thereto had not been completed. The answer to your question is YES with respect to areas where such a municipal rate hearing was not pending as of March 21,1975.

Respectfully submitted,

William Janklow
Attorney General

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