Opinion
No. 4141.
Decided June 26, 1952.
McLane, Davis, Carleton Graf and Stanley M. Brown (Mr. Brown orally), for the plaintiffs.
H. Thornton Lorimer (orally), for the State.
Sulloway, Piper, Jones, Hollis Godfrey (Mr. Hollis orally), for the defendant.
Robert P. Bingham for the Office of Price Stabilization.
MOTIONS, in aid of two appeals, under the provisions of Revised Laws, chapter 414, as amended by Laws 1951, chapter 203, from a decision and order of the Public Utilities Commission granting the Public Service Company of New Hampshire, hereinafter called defendant, a permanent increase in electric rates. The first motion filed by Chicopee Manufacturing Company and others, hereinafter called plaintiffs, who are industrial users and Class III consumers of electricity affected by the order, prays that the decision and order of the Public Utilities Commission be suspended pending their appeal to this court. The second motion filed by special counsel for the State of New Hampshire and the ratepaying public, hereinafter called State, prays that the defendant be ordered to file a stipulation in this court that it will refund and repay to its consumers and ratepayers the difference if any eventually be found to exist, between the amounts collected under the present permanent rates and the amounts that would have been collected under temporary rates. This motion; likewise in aid of an appeal by the State, prays in the alternative that if the defendant refuses to file such a stipulation, the permanent rates be forthwith suspended. The decision and order of the Public Utilities Commission of May 20, 1952, was followed by the defendant filing a consolidated electric tariff on June 9, 1952, which was approved by the Public Utilities Commission on June 10, 1952. The motions by the plaintiffs and the State to continue the temporary rates in effect pending the appeals and motions for rehearing were denied by the commission on June 16, 1952. The present appeals and motions in aid thereof as stated above were filed in this court on June 20, 1952. Arguments were heard on the motions at a hearing on June 25, 1952.
The statute regulating suspension of the orders of the Public Utilities Commission (R.L., c. 414, s. 20, as amended by Laws 1951, chapter 203) provides: "No appeal or other proceedings taken from an order of the commission shall suspend the operation of such order; provided, that the supreme court may order a suspension of such order pending the determination of such appeal or other proceeding whenever, in the opinion of the court, justice may require such suspension; but no order of the public utilities commission providing for a reduction of rates, fares, or charges or denying a petition for an increase therein shall be suspended except upon conditions to be imposed by the court providing a means for securing the prompt repayment of all excess rates, fares, and charges over and above the rates, fares, and charges which shall be finally determined to be reasonable and just." This statute makes certain propositions clear. First, an appeal does not affect the operation of the commission's order. Secondly, the Supreme Court may order a suspension pending appeal if justice requires it. Thirdly, orders of the commission providing for a reduction of rates or denying an increase therein shall be suspended only upon conditions which will allow the prompt repayment of any excess rates that may be found to exist. Sections 21 and 21a of this chapter as amended require the court to impose certain conditions upon suspension by it of a commission order reducing rates. We deem the powers granted to the court in section 20 in cases of a commission order increasing rates to include an implied power to impose similar conditions.
Since the ultimate merits of the contentions of the State and the plaintiffs can only be determined on appeal (New England Tel. Tel. Co. v. State, 95 N.H. 531), and since the arguments convince us that justice to the consumers and ratepayers may be done without an unconditional order of suspension, no such order is made. However, the provisions of the statute granting power to the court to suspend necessarily includes the lesser power to make an order which may accomplish the same result. Accordingly, it is ordered that the order of the commission is suspended pending the determination of these appeals unless the defendant forthwith files a stipulation in this court that it will promptly repay to the consumers and ratepayers any excess rates over and above those which shall be finally determined to be just and reasonable and will keep proper accounts to effectuate such repayment if current rates should be found excessive.
So ordered.