329 Mass. 124 | Mass. | 1952
This is a bill in equity under G. L. (Ter. Ed.) c. 25, § 5, for the annulment as confiscatory of an order of the department entered September 28, 1948, disallowing a schedule of rates for gas which had been filed by the company, and permitting it to file new and lower rates.
When the case was here before (Boston Consolidated Gas Co. v. Department of Public Utilities, 327 Mass. 103), it appeared from the master’s first report that, in order that the company might operate successfully, maintain its financial integrity, attract capital, and compensate its investors properly for the risks involved, it must earn for interest and dividends not less than 6.25% on a rate base of $45,000,000; but that the rates proposed by the company itself would fall far short of producing such earnings and
Upon the filing of the rescript of the full court, the single justice entered an interlocutory decree after rescript, from which the department filed an appeal. Since the decree was in exact accord with the rescript, this appeal must be dismissed. Carilli v. Hersey, 303 Mass. 82, 85.
The recommittal to the master for the specific purposes hereinbefore enumerated did not reopen the whole case. It gave the department no right to reargue matters decided when the case was here before. No case could be ended if each new step in the course of the proceeding were to be treated as a new beginning of the whole case. The duties of the master and the rights of the parties on recommittal were strictly limited by the terms of the interlocutory decree recommitting the cause. It is obvious from the master’s third report that he understood the nature of his duties under the decree of recommittal and has performed them according to the decree.
Upon the coming in of the master’s third report the single justice entered an interlocutory decree overruling the exceptions of both parties to that report and confirming the report, and a final decree annulling the order of the department of September 28, 1948. The department appeals from the final decree only. The company appeals from the interlocutory and final decrees, and also from an interlocutory decree denying its motion to strike a portion of the master’s report.
The department filed twenty-five objections to the master’s third report. Upon the filing of the report these objections automatically became exceptions. Equity Rule 26 (252 Mass. 608). Many of them do not briefly and clearly specify the matters objected to and the cause thereof as required by the rule. Others complain of the refusal of the master to go beyond the scope of the recommittal. Still others are based upon evidence not reported by the master.
The facts shown in the master’s third report do not help the department. The allocation of expenses between the gas business and the appliance business results in adding at most only $75,531 to the revenue of the gas business available for interest and dividends. Only $50,000 of the company’s invested capital has been withdrawn from the service of the public in the gas business for purposes of the appliance business. This sum can have no significant effect upon a rate base of $45,000,000. The earnings under the department’s order are still less than they would have been under the rates filed by the company by, roughly, not less than $325,000, and amount to approximately 1.28% on a rate base of $45,000,000. This is confiscatory. There would still be confiscation if the rate base were taken at any lesser figure which on any theory could possibly be warranted by any facts found by the master. The company had a right to try to increase its earnings at least to the extent that would be brought about by the rates which it filed.
The department’s appeal from the interlocutory decree after rescript is dismissed. The company’s appeals have become of no importance and are deemed to.be waived. The interlocutory decree denying the company’s motion bo strike a portion of the master’s report is affirmed. The intjerlocutory decree overruling the exceptions of both parties to the master’s third report and confirming the report is affirmed. The final decree is affirmed.
So ordered.