Letter including Nevada Attorney General Opinion No. 123 from Harvey Dickerson to Thomas A. Campbell (Las Vegas), October 26, 1955

October 26, 1955 Mr , Thomas A. Campbell, President Las Vegas Valley Water District Las Vegas, Nevada Las Vegas Valley Water District-- District, under powers granted by Chapter 167, Statutes of 1947, as amended, has power to install water meters in City of Las Vegas, notwith- standing Section 6il2 of Public Service Commission Act, Chapter 109, Statutes 19l9 as amended. My dear Mr. Campbell: You have requested of this office an official opinion as to whether the Las Vegas Valley Water District is legally empowered to install water meters within that portion of the district embraced within the boundaries of Las Vegas, Nevada. You state in your letter that the plan of the District to meter water in the Las Vegas area arises as the result of the necessity to conserve the supply of water, to eliminate its waste, and to bring about an equalization of charges. Opinion When bonds were sold in April of 1954 to provide funds for the assumption of Las Vegas water production and distribution facilities and for the purpose of supplementing the dwindling underground supply of water with water from Lake Mead, the District stated that in their belief a flat rate for water results in uncontrollable waste of that commodity and that in view of the fact that substantial quantities could be saved by the in- stallation of water meters, it was their intention to install meters if within the law. This office in an opinion dated February 7, 1955, which dealt with the jurisdiction of the Public Service Commission over property not acquired by the Las Vegas Valley Water District, set forth the reasons for the act creating the District, and as that portion of the opinion is relevant to a decision in the present matter, we repeat it: Mr. Thomas A. Campbell, President October 26, 1955 Page 2 The rapid growth in population in the Las Vegas area made it apparent as early as 1940 that something would have to be done to implement the water supply of the Las Vegas Valley The depletion of artesian water and a startling drop in the artesian water levels indicated that a new and increased source of water would have to be found to meet the growing demand. It was natural that the emergency should be met with an appropriation of the waters of Lake Mead. This, of course, meant the construction of lines and pumping stations at a great cost, only a part of which could be met by selling legally authorized bonds of the District. The legislature wisely foresaw that the District would have to have a great latitude in the administration of the water system and in the establishment of rates which would enable the system to survive. The Act of 1947 as amended in 1949 and 1951, is so far-reaching as to create an autonomy insofar as the Las Vegas Valley Water District is concerned, and insofar as its powers with regard to water are con- cerned. All cities within the District, and all boards and commissions, including the Public Service Com- mission, have powers subordinate to those of the District, once the District has acquired works or property in accordance with law. The State Engineer has stated, after careful examination of the Southern Nevada area, that water meters are greatly to be desired as a conservation measure in view of the low water level table in the Las Vegas Valley, The legal question that must be answered before an opinion may be given is this: Is the prohibition against public utilities in- stalling, operating or using water meters in any city or town containing more than 7500 inhabitants (Chapter 258, 1955 Statutes, amending Section 6112 N, C. L. 1931-1941 Supp.) applicable to the status and powers of the Las Vegas Valley Water District? As heretofore stated, the Legislature in creating the Las Vegas Valley Water District gave to it the broadest conceivable powers. The reason for this must be apparent to the most casual observer. Here Mr. Thomas A. Campbell, President October 26, 1955 Page 3 in Southern Nevada is an arid area which cannot depend upon rain or snow for water. The subterranean reaches of the earth which lie beneath the Las Vegas Valley have treasured water from unknown sources. The water level has in the past ten years diminished so as to forewarn of a severe shortage in the future, and therefore the Legislature created the District so as to enable it to bring water from Lake Mead into the Valley and to cooperate with other Nevada agencies "for the purpose of conserving said waters for beneficial use within said district. " That the Legislature did not intend to curtail the broad discretionary powers of the District is evidenced by the clear and unam- biguous language therein contained to this effect: Sec. 19. This act shall in itself constitute complete authority for the doing of the things herein authorized to be done. The provisions of no other law, either general or local, except as provided in this act, shall apply to doing of the things herein authorized to be done, and no board, agency, bureau or official, other than the governing body of the district shall have any authority or jurisdiction over the doing of any of the acts herein authorized to be done * * *. The 1951 Legislature struck from Section 19 the phrase and the public service commission of the State of Nevada", as lined out in the preceding paragraph, a strong indication that the District was not to be subject to any of the laws or regulations pertaining to public utilities as found in the act creating and setting forth the duties of the Public Service Commission (Sections 6100-6167 N.C.L. 1929 as amended). This view is further fortified by the fact that the District is given exclusive power under Section 16d of the act to establish water rates and charges, a power usually reserved to the Public Service Commission. This section reads in part, "The board shall from time to time establish reasonable rates and charges * * * and no board or commission other than the governing body of the district shall have authority to fix or supervise the making of such rates a nd charges." It is our view that the metering provision of the Public Service Commission Act is not applicable to the District. Section 6112 of Mr. Thomas A. Campbell, President October 26, 1955 Page 4 the Public Service Commission Act refers specifically to the regulation of "public utilities" as defined in that act. The rule of statutory construction is well established that the State, its subdivisions, agencies, counties, cities and districts are not bound by general words in a statute which would operate to limit the sovereign rights of the State, or its agencies, or to injuriously affect the capacity of the State or its agencies or subdivisions to perform their functions, unless the intent so to bind clearly appears, (3 Sutherland Statutory Construction, 1943, 3 Ed. Sec. 6301 ) The rule is well stated in 82 Corp. Jur. Sec. 554: The government, whether federal or state, and its agencies are not ordinarily to be considered within the purview of a statute, however general and com- prehensive the language or act may be, unless intention to include them is clearly manifest, as where they are expressly named therein, or included by necessary implication. This general doctrine applies, or applies with special force, to statutes by which prerogatives, rights, titles, or interests of the government would be divested or diminished. In the case of Sierra Pacific Power Company v. City of Reno, 33 Fed. Supp. 878, the Court sustained Section 61^2 of the Public Service Commission Act, but the Court noted that the utility had not con- tended that its water supply was inadequate or endangered by lack of meters. The Court noted that the utility's source of water was not impaired by the extravagant use of water since most of the water taken from the Truckee River returned to it either by sewage channels or by seepage. It is significant that the Court made its order denying the utility's right to in- junction without prejudice to any rights which might in the future arise by reason of changed conditions. Perhaps nowhere in reported cases is there a more clear and explicit explanation of the need for water meters under certain circum- stances than is contained in the opinion of Justice Ellison in the case of Mallon v. Water Commissioners, 128 S.W. 764: It is a matter of common knowledge that where water is supplied without limit, at a stated price, many consumers waste it. The knowledge that the quantity used will not affect the price begets indifference and encourages negligence. Nothing affords a better check Mr. Thomas A. Campbell, President October 26, 1955 Page 5 on this fault of a large part of the human family than self interest. So, therefore, the installation of devices through which it may be known what quantity of water a person uses, and whereby he may be required to pay in proportion to the quantity, are considered to be reasonable regulations. The good effect of such regulation is double; it leads to the payment by each person for the quantity he consumes, and it protects the general supply. While this office is hesitant in issuing an opinion which must necessarily meet with some public resistance, a practical view ought to be taken of all the conditions surrounding the situation, and the rights of the few sacrificed to the welfare of the many where such opinion is legally justified. To rule in view of the statutes that the Las Vegas Valley Water District is prohibited from installing water meters would amount to destruction rather than a protection of the rights and benefits of future users. It is, therefore, the opinion of this office that Section 6112 of the Public Service Commission Act as amended is not applicable to the Las Vegas Valley Water District and that said District, under the broad powers of the act creating it, can install water meters in the City of Las Vegas. Respectfully submitted, HARVEY DICKERSON Attorney General HD:MN