2020 New Mexico Statutes
Chapter 62 - Electric, Gas and Water Utilities
Article 9 - The Utility Franchise
Section 62-9-2 - Applications by utilities brought under the Public Utility Act.

A. Within sixty days after the effective date of this 1967 act, each utility brought within the jurisdiction of the commission by virtue of this 1967 act shall file with the commission an application, in such form as may be prescribed by the commission, for a certificate of public convenience and necessity covering its present plant, lines and system. Upon proof of the existence and operation of the plant, lines and system upon the effective date of this 1967 act, the commission shall grant the certificate to the utility.

B. In the event the certificate granted a utility under Subsection A of this section overlaps or conflicts with a valid certificate heretofore issued by the commission and exercised within the time required under Section 62-9-4 NMSA 1978, both certificates shall be valid and both utilities shall be permitted to continue service subject to the other provisions of the Public Utility Act [Chapter 62, Articles 1 to 6 and 8 to 13 NMSA 1978], as amended.

History: 1953 Comp., § 68-7-1.1, enacted by Laws 1967, ch. 96, § 7; 1993, ch. 282, § 35.

Repeals and reenactments. — Laws 1967, ch. 96, § 7, repealed 68-7-1.1, 1953 Comp., relating to applications by utilities covered by the Public Utility Act by virtue of Laws 1961, ch. 89, and enacted the above section.

Compiler's notes. — The words "this 1967 act," appearing in Subsection A, refer to Laws 1967, ch. 96, compiled as 62-3-1 to 62-3-4, 62-6-8, 62-8-8, 62-9-1, 62-9-2 and 62-9-6 NMSA 1978.

Sections 62-9-1 to 62-9-7 of the Public Utility Act are still effective as the repeal of Chapter 62, Article 6 by Laws 1998, Chapter 108, Section 82, effective July 1, 2003 Chapter 108, Section 82 was repealed prior to taking effect by Chapter 23, Section 1, Laws 2003. Although Laws 2003, Chapter 336, Section 8, amended Laws 1998, Chapter 82, as amended, an amendment of a repealed section is ineffective. See Quintana v. N.M. Dep't of Corrs., 100 N.M. 224, 668 P.2d 1101 (1983). Laws 2003, Chapter 416, Section 5 also repealed Laws 1998, Chapter 108, Section 82, as amended, a second time, however, that repeal is of no effect as the section had previously been repealed by Chapter 23, Section 1, Laws 2003.

The 1993 amendment, effective June 18, 1993, in Subsection A, deleted "public service" following "jurisdiction of" and made stylistic changes; and substituted "Section 62-9-4 NMSA 1978" for "Section 68-7-2 New Mexico Statutes Annotated, 1953 Compilation" in Subsection B.

Certificate cannot be held void unless not exercised diligently. — A certificate of public convenience and necessity cannot be declared null and void in the absence of findings by the commission, based upon substantial evidence, that the certificate holder failed to exercise its right with diligence. Public Serv. Co. v. N.M. Pub. Serv. Comm'n, 1974-NMSC-045, 86 N.M. 255, 522 P.2d 802.

Application covering existing facilities must be granted. — Upon timely filing of an application for a certificate of public convenience and necessity to cover a cooperative's "present plant, lines and system" and upon proof that the same are in existence and operating, the certificate so applied for must be granted. Lea Cnty. Elec. Coop. v. N.M. Pub. Serv. Comm'n, 1965-NMSC-057, 75 N.M. 191, 402 P.2d 377, cert. denied, 385 U.S. 969, 87 S. Ct. 506, 17 L. Ed. 2d 433 (1966) (decided under former similar provision).

Regardless of conflicting or overlapping certificates. — The commission cannot deny to service company its right to continue in the area covered by its certificate if its certificate has been exercised as required by Section 62-9-4 NMSA 1978, or, in other words, if its certificate is valid in the area sought to be served by it, even though other public utilities have overlapping or conflicting certificates; furthermore, the commission cannot hold existing franchise rights null and void, nor can it make an order which would conflict with this section, which states that when certificates granted utilities under this section overlap, certificates theretofore issued and exercised within the time required are valid under Section 62-9-4 NMSA 1978 and both utilities shall be permitted to continue service. Public Serv. Co. v. N.M. Pub. Serv. Comm'n, 1974-NMSC-045, 86 N.M. 255, 522 P.2d 802; N.M. Elec. Serv. Co. v. Lea Cnty. Elec. Coop., 1966-NMSC-046, 76 N.M. 434, 415 P.2d 556, cert. denied, 385 U.S. 969, 87 S. Ct. 506, 17 L. Ed. 2d 433.

New certificate and conflicting or overlapping certificate are both valid. — Subsection B provides that both the certificate so granted as well as any pre-existing certificate overlapping or conflicting with that granted to the cooperative shall be valid and the service under both shall continue. No suggestion of delineation of areas or territory served or to be served is contained in the plain language used by the legislature. Lea Cnty. Elec. Coop. v. N.M. Pub. Serv. Comm'n, 1965-NMSC-057, 75 N.M. 191, 402 P.2d 377, cert. denied, 385 U.S. 969, 87 S. Ct. 506, 17 L. Ed. 2d 433 (1966) (decided under former similar provision).