In re Public Service Co.
In re Public Service Co.
Opinion of the Court
The question before us is whether on the facts stated the General Electric Company is an affiliate of the Public Service Company of New Hampshire (hereinafter called the company) within the meaning of R. L., c. 305, s. 1, par. 11(a) which reads as follows:
Nor do we believe it can be said that the General Electric “holds” or since 1933 has held directly or indirectly twenty per cent or more of the voting capital stock of the company. Counsel has cited no authority, nor do we know of any which would so interpret the words under the circumstances here. No claim is made that there is or has been within the period under consideration any direct holding of the voting capital stock of the company by the General Electric. If it may be said that language in State v. New Hampshire Gas and Electric Co., 86 N. H. 16, lends support to the argument that the General Electric is an affiliate of the company, holding indirectly twenty per cent of the company’s voting capital stock, we believe that case is no authority here. The Public Service Commission there found that the two New Hampshire utilities, which seem to have been considered, by our court on the strength of this finding as affiliates of the Associated Gas & Electric Company, were controlled and operated by the Associated company through controlling interests in a chain of stock ownership and interlocking directorates. There is no such evidence before us of control of the Public Service Company of New Hampshire by the General Electric. Furthermore that case was decided in 1932 prior to the enactment of our present law and the Legislature’s rejection of the chain ownership principle set forth in House Bill 358 as
However, it is not necessary to rely wholly on these reasons because if seems the history of the act directly refutes such a meaning as the State contends for here. The first bill relating to this subject introduced in the House in 1933 (House Bill 358) so far as material defined affiliate as follows: “(a) Every person owning or holding directly or indirectly five per centum or more of the voting capital stock of a public utility.
“(b) Every person in any chain of successive ownership of five per centum or more of voting capital stock of a public utility.
“(c) Every corporation or association five per centum or more of whose voting capital stock, or certificates of membership, is owned by any person owning five per centum or more of the voting capital stock of a public utility or by any person in any such chain of successive ownership of five per centum or more of the voting capital stock of a public utility.” (Emphasis ours).
Another bill (House Bill 458) which was referred to the House committee on judiciary defined affiliate thus; “II. ‘Affiliate’ shall mean and include the following:
“(a) Every person owning or holding directly or indirectly five per cent or more of the voting capital stock of a public utility.
“(b) Every corporation or association which has one or more officers or directors in common with a public utility.
“(c) Every person who the commission may determine as a matter of fact after investigation and hearing is either directly or indirectly actually exercising any substantial influence over the policies and actions of a public utility, whether or not in conjunction with one or more persons.” (Emphasis ours).
It is obvious from these bills that the Legislature had in mind just such a situation as confronts us here and knew how to take care of it
Other states prior to the passage of our statute enacted laws which contained provisions similar either to House Bill 358 (see General Acts, Alabama, Extra Session, 1932, c. 232) or combined the features of both House Bill 358 and House Bill 458, going even further in some respects. See Laws New York (1930) c. 760; Laws Kan. (1931) c. 239, s. 1; Laws Wis. (1931) c. 183, s. 196.52. The New York law for example defined “affiliated interests” in part as follows: “Section 2b. Every corporation and person in any chain of successive ownership of ten per centum or more of voting capital stock, c. Every corporation ten per centum or more of whose voting capital stock is owned by any person or corporation owning ten per centum or more of the voting capital stock of such utility corporation or by any person or corporation in any such chain of successive ownership of ten per centum or more of voting capital stock. ... f .Every corporation or person which the commission may determine as a matter of fact after investigation and hearing is actually exercising any substantial influence over the policies and actions of such utility corporation even though such influence is not based upon stockholding, stockholders, directors or officers to the extent specified in this section.”
Sub-section “g” provided in substance for an extension of “f” to include persons or corporations acting in conjunction with persons or corporations situated as thus described in “f.” This applies though
The Congress of the United States faced with a like problem also found a plain solution. It wrote a law defining an affiliate among other things as follows: “Any person that, directly or indirectly owns, controls, or holds with power to vote, 5 per centum or more of the outstanding voting securities ...” Public Utility Holding Company Act of 1935 (s. 79), 15 U. S. C. A. 593.
Evidently Congress too considered this definition too narrow, though it is broader than ours, as will be noted by the insertion of the word “control” because they tacked on an addition, “any person or class of persons that the Commission determines, after appropriate notice and opportunity for hearing, to stand in such relation to such specified company that there is liable to be such an absence of arm’s-length bargaining in transactions between them as to make it necessary or appropriate in the public interest or for the protection of investors or consumers that such person be subject to the obligations, duties, and liabilities imposed in this chapter upon affiliates of a company.” 76., (a) (11) (D). (Emphasis ours).
In brief our Legislature had ample opportunity to pass a statute expressly dealing with chain ownership as did other States and Congress. It rejected this solution after what appears to have been long and careful consideration and chose to enact a compromise. One result of the compromise was that the Legislature made ownership of voting stock the test to determine whether an utility should be regulated. In the sub-section before us it flatly rejected the test of control regardless of voting stock ownership. The conclusion appears inescapable that by this compromise it neither intended nor defined a corporation in the situation of the General Electric here, to be an affiliate of the New Hampshire company. The sound principle that the court’s interpretation of such statutes as this should be liberal (Railroad v. Railroads, 65 N. H. 393, 399) and the argument that our construction should be as broad as the evil sought to be prevented (see Opinion of the Justices, 66 N. H. 629, 660) do not permit us to distort the words which the Legislature used nor to read in words which they refused to put there. Manock v. Company, 86 N. H. 104, 107; Davis v. Company, 88 N. H. 204, 207; Bodeau v. Bodeau, 92 N. H. 183, 184.
Our conclusion, therefore, is that the General Electric Company is not and has not been within the period involved an affiliate of the
Case discharged.
Reference
- Full Case Name
- Petition of Public Service Company of N. H.
- Status
- Published