The factual aspects of this case are relatively simple and stand in stark contrast to the voluminous and far-reaching legal arguments which have been put forth by both parties.
Basically there is no dispute that the Park Lanes Bowling Alley was served with electrical power by the Anchorage City Utility Department, that the bowling alley requested Chugach Electric Association (hereafter referred to a Chugach) to provide service, that Chugach began constructing connecting lines to nearby, existing Chugach lines, and that the bowling alley is both within the city limits and within the service area of Chugach, as set forth in Chugach's state certificate of public convenience and necessity. The extension of service contemplated by Chugach was to cost in excess of $1,000; yet Chugach did not apply for a city building permit, which was required by city ordinance when more than $1,000 worth of work of this type was
Although a battery of arguments has been offered by each side to this dispute, there are basically only two questions on this appeal: Was an injunction the proper remedy to enforce a criminal ordinance? May the city validly deny Chugach permission to serve the bowling alley? Because a resolution of the second issue will necessarily dispose of this case, we need not address our attention to the first issue.
The problem simply stated is this: Chugach has been requested by Park Lanes, a member of the Chugach cooperative that is presently being served by the city, to provide Park Lanes with electric utility service. The city maintains that Chugach must comply with its ordinance which requires the obtaining of a permit prior to commencing work of the nature of that contemplated by Chugach. Chugach responds by pointing out to the city that only the Public Service Commission has the power to prohibit it from extending its service, that the PSC has already issued a certificate of public convenience and necessity and, therefore, it is unnecessary for it to obtain a permit from the city.
At the centre of this electrical storm are several constitutional provisions, a handful of statutes, and a city ordinance.
Because of the nature of the legal issues raised, each party to this dispute has attempted to create a fine filament of argument in support of its position, plugging in the various statutes and constitutional provisions where relevant. Because of the interplay of the arguments, it is not completely possible to follow the thrust of some of the points made. We have, nevertheless, attempted to resolve some of the minor issues raised, as well as disposing of the problem which is central to this appeal.
Appellant argues that although this court has interpreted the Alaska Constitution as establishing a broad base upon which to erect a municipal code,
Appellant argues that because of the city's own charter, the city is without power to regulate it.
A problem of minor importance involves the status of appellant. City has admitted that Chugach is indeed a "public utility" as defined in the Alaska Public Service Commission Act,
The court below found that appellant's facilities were not authorized by permit and constituted a nuisance and encroachment upon public rights-of-way. Chugach argues that pursuant to AS 10.25.010,
In generating its counterarguments, the city claims that under any circumstances, municipalities are exempt from control by the PSC, due to its limited power. Here, also, the state legislature has recently spoken on this matter.
Respondent points out that under AS 42.05.390,
In stating its resistance to the argument that the state has preempted in the area of regulation at issue because the state has "occupied the field," the city cites Antieau
We have finally reached the question which goes to the very nucleus of the problem: Can the city limit the operations of Chugach by denying it a permit to extend its services? We have come to the conclusion that the city ordinance must yield to the PSC determination that appellant may operate within the certified service area. The ability of a municipality to subvert the judgment of the PSC that the public convenience and necessity require an electrical supplier to furnish electricity, even within the corporate limits of that municipality, would severely impair the proper functioning of the commission. Because the legislature has not spoken of this problem in terms applicable to this particular case,
The ordinance involved
Although the powers of home rule cities vary depending upon the bases for the grants of such power,
This rule was not born of a need to preclude municipal legislation when the state has preempted an entire area of law. Instead, it is merely an expedient method for resolving an impasse between state statutes which seek to further a specific policy and municipal ordinances which either directly or collaterally impede this implementation.
In considering the case before us, we feel that this rule will adequately serve to eliminate the existing friction between our state statutes vesting power in the PSC and the city's ordinance. Here, the activity sought to be regulated is unquestionably of a state-wide concern — the denomination of service areas wherein a public utility may operate. Even assuming some doubt as to a correct characterization of the activity,
The statutes involved herein,
Our holding attempts to comport with the current trend of authority in dealing with problems of this nature.
The decision of the court below is reversed and the case is remanded with instructions to dissolve the permanent injunction.
BONEY, C.J., not participating.
Alaska Const. art. X, § 2, provides:
Alaska Const. art. X, § 7, provides:
Alaska Const. art. X, § 11, provides:
AS 10.25.010 provides:
AS 10.25.620 provides:
AS 29.05.010 provides:
AS 29.05.020 provides:
AS 29.10.201 provides:
AS 42.05.193 provides:
AS 42.05.390 provides:
AS 42.05.620 provides:
AS 42.05.640 provides in part:
Anchorage Code of Ordinances, Section 9-26 provides:
AS 29.08.013 states:
AS 29.08.200 states in part:
The above quoted section is subject to qualification by AS 42.05.711(b), added by SLA 1970, ch. 113 § 6, as follows:
Apparently any uncertainty in determining the scope of the operations of public utilities will be eliminated by enactment of recent legislation by the state. AS 42.05.221, added by SLA 1970, ch. 113 § 6, states in part that:
AS 42.05.221, added by SLA 1970, ch. 113 § 6:
See supra note 11. An interpretation of this new bill will not be attempted. No inferences should be drawn about this court's posture toward the new legislation on the basis of our holding in this case. Any such determination would require the careful consideration of arguments presented in a full adversary proceeding.
In Chugach Electric Association v. City of Anchorage, 426 P.2d 1001 (Alaska 1967), we determined that even though the Public Service Commission had issued a certificate of convenience and necessity to Chugach Electric Association, this was not in effect a grant of a monopoly to Chugach to provide services in areas outside but immediately contiguous and adjacent to the city of Anchorage. We also concluded that, based upon our study of the legislative history of the Alaska Public Service Commission Act (AS 42.05.010-AS 42.05.650), municipally owned and operated utilities were intended to be excluded from the act's coverage. In light of recent legislation, this may no longer be a correct interpretation of the PSC Act as amended. See supra note 11.
See also Strode v. Sullivan, 72 Ariz. 360, 236 P.2d 48 (1951) (held, matter of municipal elections is of local concern and provisions of charter supersede all laws of state in conflict therewith); Heubeck v. City of Baltimore, 205 Md. 203, 107 A.2d 99 (Md. Ct. App. 1954) (provision in constitution which empowered home rule city prescribed that general laws would prevail over city ordinances); City of Kalamazoo v. Titus, 208 Mich. 252, 175 N.W. 480 (1919) (home rule power derived from public act rather than constitution; court looked to local nature of activity sought to be regulated in reconciling ordinance and state statute); Carlberg v. Metcalf, 120 Neb. 481, 234 N.W. 87 (1930) (home rule city deriving power from constitution; held, state statute prevails when activity not of local concern); State ex rel. Cozart v. Carran, 133 Ohio St. 50, 11 N.E.2d 245 (1937) (home rule power deriving from state constitution limited to regulating local matters not in conflict with general laws). For more recent refinements of this rule, see generally Englewood v. Mountain States Tel. and Tel. Co., 163 Colo. 400, 431 P.2d 40 (1967); Square Deal Coal Haulers and Yardmen's Club, Inc. v. City of Cleveland, 176 N.E.2d 348 (Ohio C.P. 1961); City of Akron v. Williams, 172 N.E.2d 28 (Ohio Mun.Ct. 1960); Neapolitan v. U.S. Steel Corp., 149 N.E.2d 589 (Ohio Ct. App. 1956).