185 F.2d 751 | D.C. Cir. | 1950
Lead Opinion
The Federal Power Commission has ordered the Arkansas Power & Light Company, a licensee public utility, to record certain adjustments in its basic corporate accounts. The Company and its parent corporation, together with the Arkansas Public Service Commission, contend that because the Company is subject to inconsistent accounting requirements of the Arkansas Commission, the Federal Commission’s order is invalid. The law is settled to the contrary. The Federal Power Commission’s authority over accounts of its licensees covers basic accounts and does not end where State authority begins. Northwestern Electric Co. v. Federal Power Commission, 321 U.S. 119, 64 S.Ct. 451, 88 L.Ed. 596, affirming 9 Cir., 134 F.2d 740; Northwestern Electric Co. v. Federal Power Commission, 9 Cir., 125 F.2d 882; Alabama Power Company v. Federal Power Commission, 5 Cir., 134 F.2d 602; Louisville Gas & Electric Co. v. Federal Power Commission, 6 Cir., 129 F.2d 126, certiorari denied, 318 U.S. 761, 63 S.Ct. 559, 87 L.Ed. 1133, rehearing denied, 318 U.S. 800, 63 S.Ct. 768, 87 L.Ed. 1164; Northern States Power Co. v. Federal Power Commission, 7 Cir., 118 F.2d 141. “If the State, in the proper performance of its duties, wishes to require the keeping of a separate set of books no doubt it can do so.” Alabama Power Co. v. Federal Power Commission, 75 U.S.App.D.C. 315, 321, 128 F.2d 280, 285-286, certiorari denied, 317 U.S. 652, 63
The Company very properly abandoned, on oral argument, the contention in its brief that the adjustments ordered by the Federal Commission were arbitrary and capricious, apart from their inconsistency with the order of the Ahkansas Commission. “It is not for us to determine what is the better [accounting] practice so long as the Commission has not plainly adopted an obviously arbitrary plan.” Northwestern Electric Co. v. Federal Power Commission, supra, 321 U.S. at page 124, 64 S.Ct. at page 454, 88 L.Ed. 596. Pennsylvania Power & Light Co. v. Federal Power Commission, 3 Cir., 139 F.2d 445, certiorari denied, 321 U.S. 798, 64 S.Ct. 938, 88 L.Ed. 1086; Pacific Power & Light Co. v. Federal Power Commission, 9 Cir., 141 F.2d 602.
Affirmed.
Dissenting Opinion
dissenting.
I think the decision of the majority is incorrect for the reasons given in the opinion of this court in Arkansas Power & Light Co. v. Federal Power Commission, 1946, 81 U.S.App.D.C. 178, 156 F.2d 821. It is true that our decision in that case was reversed by the Supreme Court. Federal Power Commission v. Arkansas Power & Light Co., 1947, 330 U.S. 802, 67 S.Ct. 963, 91 L.Ed. 1261. But it was by a per curiam opinion which read: “Per Curiam. Judgment reversed on the ground that respondent has failed to exhaust its administrative remedies. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638; Macauley v. Waterman S. S. Corp., 327 U.S. 540, 66 S.Ct. 712 [90 L.Ed. 839].”
Following that reversal the Arkansas Power & Light Company exhausted its administrative remedies and came ho’-e w’di the same contentions as before. Our former decision as to the merits was not reversed and seems to me to be correct and controlling here.