In re Public Service Co. , 125 N.H. 595 ( 1984 )

Per curiam.

This case presents the issue whether this court should answer a question purported to be transferred to it pursuant to RSA 365:20 by the public utilities commission (PUC). That question is:

“Do orders of the Public Utility Commission authorizing a public utility to issue securities pursuant to RSA 369:1 and 4, which have not been suspended in accordance with RSA 541:18, enable the Public Utility to issue valid securities, notwithstanding the possibility of appeal or the possible results thereof?”

I. Facts

This summer Public Service Company of New Hampshire (PSNH) petitioned the PUC for authority to market 425 million dollars worth of financial obligations as a part of a three-step plan to re-establish the company’s financial integrity. The PUC opened a financing docket pursuant to RSA chapter 369 (DF 84-167), and after several hearings approval was granted on September 21, 1984. In Order No. 17,222 the PUC: “ORDERED, that Public Service Company of New Hampshire be, and hereby is, authorized to raise not more than $425,000,000 through the issuance and sale of warrant debentures and Units consisting of debentures and warrants to purchase shares of common stock ....”

After a pricing order (No. 17,228) was issued PSNH then sought by original petition to raise an issue never previously raised in docket DF 84-167, namely, a question of law relating to the impact of a 1976 Wisconsin Supreme Court decision, Wisconsin ex rel. Wisconsin Electric Power Co. v. Bardwell, 71 Wis. 2d 718, 239 N.W.2d 78 (1976), and its relationship to a 1980 decision of this court, Appeal of Granite State Electric Co., 120 N.H. 536, 421 A.2d 121 (1980). The controversy, if it can be called such, is stated in paragraph 2 of the instant interlocutory transfer’s statement of facts (which is a verbatim repetition of paragraph 5 of PSNH’s motion for a supplemental order dated October 1, 1984, before the PUC) to be that “without an opinion of counsel of PSNH that securities issued on the basis of orders of the Commission which have not been suspended, are valid and will remain so regardless of appeals,” the public portion of the offering may be jeopardized.

The nub of the problem as alleged is that the opinion letter of the law firm of Sulloway, Hollis & Soden is, under the existing state of the law, apparently not sufficiently acceptable to its clients’ underwriters on Wall Street and therefore this court’s opinion is being sought. In the absence of a factual record to support this assertion, we cannot comment further. After unsuccessfully petitioning this court on September 27, 1984, directly (Supreme Court docket No. 84-451, order issued September 28, 1984), PSNH moved on October 1, 1984, for a supplemental order from the PUC in DF 84-167 seeking to have the PUC direct PSNH to sell the securities it had requested permission to sell. The PUC then purported, pursuant to RSA 365:20, to transfer the so-called Bardwell question to this court. The financing orders of the commission (No. 17,222 and No. 17,228) have not been suspended in accordance with RSA 541:18, nor have any parties sought a stay of those orders in this court.

II. Law

A. We begin with RSA 365:20:

“365:20 Questions of Law. The commission may at any time reserve, certify and transfer to the supreme court for decision any question of law arising during the hearing of any matter before the commission.”

This statute does not authorize this court to issue advisory opinions of the sort our co-equal branches of government may require pursuant to part II, article 74 of the New Hampshire Constitution. The power to issue such opinions is given to but a handful of courts in our nation and is a power that is denied to the United States Supreme Court under the Federal Constitution. See Laird, v. Tatum, 408 U.S. 1 (1972).

Because such advisory opinions do not arise out of an adversary relationship between contending parties, we have strictly construed even the power to issue them and from time to time have denied advice to our coordinate branches of government. See, e.g., Opinion of the Justices, 115 N.H. 329, 340 A.2d 112 (1975); Opinion of the Justices, 102 N.H. 240, 154 A.2d 184 (1959).

While the transfer provision of RSA 365:20 was described as being derived from legislative authority, it “cannot be extended by legislative action.” Petition of Turner, 97 N.H. 449, 450, 91 A.2d 458, 459 (1952). That decision points out that the authority of the PUC is limited to those occasions “when justiciable rights are involved and the question arises in adversary proceedings before the Commission.” Id. Furthermore, “Advisory opinions required by [part II, article 74] are limited to advice upon important legal questions pending in, and awaiting consideration and action by, the body entitled to the advice in the course of its duty.” Opinion of the Justices, 115 N.H. at 330, 340 A.2d at 114 (emphasis added). We could hardly give a broader construction to a statute governing an agency created by the legislature than we do when asked for our advice by a legislative body itself.

We agree with our Brother Brock that this matter is important and is a legal question. All across our State and nation, lawyers daily are faced with important legal questions which they would prefer to have definitively answered by an appellate court. Our constitutional republic, however, confines the judiciary to deciding cases and not to serving as a “super law firm,” no matter how high the stakes or how important the question. Were we to accept this transfer, the power of the judiciary would be expanded beyond anything heretofore known in America. The hydraulic pressure of a hard case cannot compel us to expand our limited authority under the constitution. The judiciary’s ship is not meant to be all sail and no anchor.

Desirable ends will not validate unlawful means. As the United States Supreme Court said in the depth of the Depression:

“We are told that the provision of the statute . . . must be viewed in the light of the grave national crisis with which Congress was confronted. . . . Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power.”

Schechter Corp. v. United States, 295 U.S. 495, 528 (1935).

If we agreed with our Brother Brock that any procedural flaw were merely a technical one, we would not hesitate to ignore it; but unfortunately it far exceeds the bounds of a technicality. See Berlinguette v. Stanton, 120 N.H. 760, 423 A.2d 289 (1980).

We conclude rather that PSNH’s pending request for an order directing it to do what the PUC has previously authorized it to do is not a matter pending before the PUC to which the present question is relevant. Public Service Company has itself requested that order; the order is manifestly unnecessary to require Public Service Company to take whatever action may be necessary on its part to sell the authorized securities. There is no indication in the record before us that the PUC has undertaken to reconsider any term or condition of the previously authorized sale, or to impose any new term or condition, to which an answer to the present question would be relevant. We can only conclude that Public Service Company’s pending request before the PUC was filed to give jurisdictional color under RSA 365:20 to what in the present posture of the proceedings before the PUC is in reality a request for an advisory opinion.

B. As alternative grounds for seeking our opinion, the PUC has also stated that the practical effectiveness of its prior orders No. 17,222 and 17,228 in docket DF 84-167 require an answer to the question. In the course of oral argument several counsel indicated that the answer to the question could prompt further PUC action. It was suggested, for example, that the possible answer to the question might persuade the commission to issue further orders restricting the use of proceeds from the sale of the securities. This suggestion puts the cart before the horse, however, for unless the PUC actively undertakes to consider further restrictions on the proceeds, there is no matter pending before it for its decision.

We can only say that it could be possible for the PUC to transfer and for us to answer a question such as the present one if docket DF 84-167 should be reopened for the bona fide purpose of considering such a matter upon proper notice and opportunity to create a testimonial record. Though such a proceeding could be held on an expedited basis, there would then be an issue before the commission properly calling for its action. The answer could be a relevant consideration for the PUC in deciding what to do. The question would arise in a proceeding which at least until this time has been adversarial, and it would relate to justiciable issues about the use of money and rights of security holders. We are not aware that any intervenor has even questioned the PUC’s jurisdiction to consider such further orders. See Meserve v. State, 119 N.H. 149, 400 A.2d 34 (1979).

Petition dismissed.

King, C.J., concurred specially and dissented in part; Brock, J., dissented.