271 Pa. 346 | Pa. | 1921
Opinion bt
This proceeding originated when appellants, other than the Public Service Commission, filed with the commission complaints against appellee’s new schedule of rates, eventuating in a decision greatly decreasing the valuation placed by appellee on its plant, and necessitating, if this conclusion was sustained, a reduction of the scheduled rates. The Superior Court overruled the commission, as to five of the items of valuation (68 Pa. Superior Ct. 561), the net result of which would have been to sustain the rates. On appeal, we reversed, and approved the findings and order of the commission (260 Pa. 289), largely because we were of opinion that the
It will be noted the decision of the Supreme Court of the United States requires only that one “judicial tribunal” shall exercise “independent judgment as to..... the facts at issue”; and this having been secured, in the present instance, by the action of the Superior Court, we are at liberty, on appeal from its decree, to follow
the method prescribed by the Public Service Company
Turning then to the act, we find, by section 30 of article VI thereof, as amended by the Act of July 11, 1917, P. L. 808, that appeals to us, in these cases, “shall be taken and prosecuted in the same manner and with the same effect, as is provided in other cases of appeal from the Superior Court to the Supreme Court”; but neither this provision, nor section 1 of the Act of June 16,1836, P. L. 785, or section 2 of the Act of May 20, 1891, P. L. 101 (which latter acts give us the power, after we have decided that the judgment or. decree appealed from is erroneous, to finally end a case, by an appropriate judgment or decree, or, in our discretion, to remit it for further proceedings), in any way affects the rule that only errors of law, appearing on the record, will be considered on appeal, — a practice which, admittedly, has always been in force in this court, — must have been known to the legislature, as a coordinate branch of the government, and, moreover, is the natural, if not the necessary, result in cases where we have an appellate jurisdiction only. The conclusion stated being correct, it must be presumed the legislature intended, when it authorized appeals from the Superior Court to us, in this class of cases, that we should apply the existing rules and methods of procedure thereto, and not assume additional power since it was not conferred, either expressly or by necessary implication. This being so, how; far should we go, in this appeal, in passing upon disputed questions of fact?
Originally the character of relief provided by the act could be obtained only in a court of chancery, and, at the time of its passage, this was still the case at least as to certain utilities; of course, it continues of the same nature, though now regulated by statute, especially as the proceedings thereunder, the method of considering the questions raised, and indeed the nomenclature used in the act, including the “final decree,” which ends the
We are of opinion, therefore, that the scope of our review of the findings of fact of the Superior Court, in this, as in all other cases, is simply to determine matters
In this light, we approach the consideration of th,e next matter argued before us, Viz: “The constitutional question of confiscation presented to and decided by the\ Superior Court”; and we do so unembarrassed by what we said, respecting the facts, in our prior opinion (260 Pa. 289); for, in this respect, our legal position remains unchanged. There, as here, we recognize there was conflicting testimony regarding the five matters of valuation still in dispute, one part of which evidence, if believed, would sustain the findings of the commission, and the other part, if believed, would sustain the antagonistic findings of the Superior Court; there, we gave to the findings of the former the effect of a verdict by a jury, and reversed the Superior Court for not doing likewise; now, better advised, we give that effect to the findings of the latter, because it is the “judicial tribunal,” whose “independent judgment” is required, under the Constitution of the United States, in order that the statute may not violate due process of law.
There can, of course, be no confiscation when a utility company receives a reasonable return on its investment, but, if it is deprived thereof, confiscation necessarily results. The water company, in the present case, insists that unless there is allowed to it the rates which it filed, it will not get such reasonable return; this is disputed by appellants, and the decision of this question turns on. what valuation, if any, is to be given to the five items,
The first of these is: What interest should have been allowed, upon the investment of the water company, prior to the time when its plant became operative? Everybody concedes it was entitled to some interest during this period, the only question being as to the time for which allowance should be made. The engineers of both sides agree that the “construction period [was] two and a half years for lands and two years and less for plant,” and that interest should be allowed at the rate of six per cent per annum. Some of the money raised was needed for the purchase of real estate and hence was required before actual construction began; some in the early stages of the work; and some in later stages. It does not appear when interest actually began on the money raised for construction purposes, and hence the commission allowed it during an average period of one and a half years, whereas the Superior Court, for reasons stated by it, allowed it during two and a half years, evidently because the money was probably raised, or arranged for, before the work had begun or materially progressed. As we said when the case was here before (260 Pa. 308), “This was a matter of judgment to be exercised upon consideration of the facts”; it remains so, and we think, in view of the conclusion as to our duty as an appellate court, that the matter is not so clear as to justify us in overruling the Superior Court’s finding in regard thereto.
The next question involved is that of “going-concern value”; that is to say, the difference between the value of the plant as a going-concern and its value as a constructed but idle plant. That this should be considered, is directly stated in article V, section 20 (a) of the Public Service Company Law, and we so held in Turtle Creek Borough v. Pennsylvania Water Company, 243 Pa. 401; hence the only questions open are (1) whether it was actually included in the commission’s valu
The next question to1 be considered is the value of the Neville Island real estate. Every one concedes it had to be valued; the majority of the commission say it was worth $48,800; Mr. Rilling, who, as stated above, was the only commissioner who saw and heard the witnesses and examined the property, says it had “a fair valuation of at least $100,000”; there was evidence it was worth two and a half times that amount; the Superior Court found it was worth $100,000, with which, under the appellate practice stated, we would not be justified in interfering.
. The next question is “What was the value of the parallel lines of pipe which were purchased by appellee from the Monongahela Water Company?” It appears that at one time a rivalry existed between the water companies in a part of the territory now occupied by appellee alone, and during that period parallel pipe lines had been laid on certain streets therein. These parallel lines were purchased, are now used by appellee, and an
The last of the five questions is, Whether or not brokerage, on the sale of the bonds of the water company, should have been allowed? The commission says that sufficient evidence of actual payment thereof was not produced, but everybody knows that expenses are necessarily incurred in such sales; even our Victory and Liberty Loans could not be marketed except at a very heavy cost. There is no legal principle standing in the way of making a proper allowance therefor, and it is difficult to understand the basis of the mistake of those who hold it should not be allowed. The matter is in the same situation as if appellee had placed its bonds in the hands of an agent, with direction to sell them and apply the proceeds, as needed, for construction expenses. These bonds were all that the water company had to apply in payment of the plant, and the use thereof for this purpose, in the final analysis, constituted simply an exchange of one for the other. If it had been remembered that money itself has no value except that given it by reason of the fact that other commodities can be obtained in exchange therefor, the error of refusing to al
Section 7, article XVI, of the Constitution of the Commonwealth, recognizes the right of any corporation to issue stocks or bonds “for money, labor done or money or property actually received”; in substance, this is what occurs in every case of a bond flotation for the purpose of raising money to pay for labor and materials necessary in the construction of a business plant. Of course neither the commission, nor the courts, would justify more than a reasonable allowance for this purpose; for anything beyond that would be an indirect violation of the constitutional provision above referred to.
In the instant case, the evidence would seem to justify the conclusion that expenses were paid in selling the bonds, but neither the exact purpose of the payments, nor the amount thereof, clearly appears. Common experience shows, however, the bonds could not have been marketed without paying brokerage, either to the persons who sold them, or by reduction from par value on their sale to a purchaser, or both; especially in the case of an investment, somewhat problematical as to safety, as was the fact with regard to all these utilities in the beginning. The Superior Court inferred that, as usual, brokerage was paid (at the rate agreed upon as proper, if any allowance was to be made), and we cannot say this was clearly erroneous.
In order to render innocuous the error made in our prior opinion, that “brokerage for the sale of its bonds ......should properly be considered in connection with the interest charge, and should not be included in the fixed capitalization of the company as the basis of a permanent charge,” we now overrule it. As stated, brokerage is a principal expense, just as it would have been had the labor and materials been paid for in bonds at their market value, as in effect was done.
The last question we directed to be argued is: “The propriety of the form of the order entered by the Supe
The decree of the Superior Court is affirmed and the appeal is dismissed at the cost of appellants.