141 Me. 222 | Me. | 1945
The bill of exceptions which brings-the proceedings here under consideration to this Court was allowed by the chairman of the Public Utilities Commission on August 26,1944, pursuant to the provisions of R. S. 1930, Chap. 62, Sec. 63, as amended, now found in R. S. 1944, Chap. 40, Sec. 66.
The statute establishes no ground which will justify discontinuance of public service by a public utility as a matter of right but vests authority in the Commission to approve such action and in connection therewith to “impose such terms, conditions, or requirements as in its judgment are necessary to protect the public interest.” The procedure is compulsory for all public utilities, as defined in Chapter 40 aforesaid, except those subject in that regard to the jurisdiction of the Interstate Commerce Commission or acting by order of court in bankruptcy, foreclosure or receivership proceedings.
The ground alleged by the petitioner relates to a decree entered by the Commission on May 17, 1944, which, according to the petition, ordered it to repair and replace its “source of supply, pumps, tanks, pipes and other facilities”. Specifically the alleged justification for discontinuing service is that the cost of the improvements ordered would exceed any reasonable return thereon, whereby it was clearly intended to assert that the net revenues to. be derived from public service, after the improvements required by the order were installed, would be inadequate to yield a fair return on the reasonable value of the property used or required to be used in connection therewith, if valued with due regard to the capital invested in the plant and improvements.
The petitioner made no attempt to raise a question of law under the statute to which it has resorted in this process
The principle declared in these cases requires that all of the exceptions here presented be overruled on the ground that they present an attempt to avoid the effect of a decree of the Public Utilities Commission without compliance with the provisions of R. S. 1930, Chap. 62, Sec. 63, as amended by P. L. 1931, Chap. 116 and P.L. 1933, Chap. 6 (now found in R. S. 1944, Chap. 40, Sec. 66), unless P. L. 1933, Chap. 155 (now It. S. 1944, Chap. 40, Sec. 47), provides a statutory method for indirect attack on Commission action, available as an alternative to raising a question of law against a decree affecting a utility entitled to discontinue its public service with the approval of the Commission. Petitioner argued the two exceptions which have been quoted in their pertinent parts on the dual ground that a public utility has an absolute right to discontinue its public service at will and that the statute purporting to vest regulatory authority over such action in the Public Utilities Commission is unconstitutional if it contravenes that right. Reliance for the latter ground is on the Fourteenth Amendment to the Constitution of the United States and the contention must be summarily dismissed on the authority of the Supreme Court of the United States, on which point is seems unnecessary to cite anything more than United Fuel Gas Co. et al. v. Railroad Commission of Kentucky et al., 278 U. S., 300, 49 Sup. Ct., 150, 73 L. Ed., 390, where the present Chief Justice declared it to be a rule of the Court, consistently applied:
“that one who has invoked action by state courts or authorities under state statutes may not later, when dissatisfied with the result, assail their action on the theory that the statutes under which the action was*227 taken offend against the Constitution of the United States.”
Since the petitioner sought approval for its voted discontinuance of service under the statute, it does not lie within its power, that approval being denied, to attack the constitutionality of the law in subsequent proceedings on its petition.
In support of its contention that the right of discontinuance of public service by a public utility is a matter of absolute right the petitioner cites decisions of the United States Supreme Court which recognize that there are circumstances which will justify the withdrawal of property devoted to public service from such a use. From two cases language is quoted which carries implication that the issue is for determination by the property owner. In Munn et al. v. People of Illinois, 94 U. S., 113, 24 L. Ed., 77, Mr. Justice Waite speaking for a majority of the Court declared that although one who devoted his property to public service granted the public a right therein and must submit to control for the common good:
“He may withdraw his grant by discontinuing the use.”
This statement was quoted by Chief Justice Taft in a case involving the validity of a statute intended to regulate wages and terms of employment in industry covering a wider field than public service. Chas. Wolff Packing Co. v. Court of Industrial Relations of Kansas, 262 U. S., 522, 43 Sup. Ct., 630, 67 L. Ed., 1103, 27 A. L. R., 1280. Neither case dealt with legislation designed to safeguard the public interest in proceedings having to do with the abandonment of public service.
Later decisions make this crystal clear. In Bullock et al. v. State of Florida, 254 U. S., 513, 41 Sup. Ct., 193, 63 L. Ed., 680 (decided two weeks after the decision in the Erie Railroad case, supra, the Brooks-Scanlon case is interpreted as representing the principle that the owners of a property devoted to a public use “are not bound to go on with it at a loss if there is no reasonable prospect of profitable operation in the future.” In Railroad Commission of Texas et al. v. Eastern Texas Railroad Co. et al., 264 U. S., 79, 44 Sup. Ct., 247, 68 L. Ed., 569, the same thought is expressed in the words that “if at any time it develops with reasonable certainty
Neither petitioner’s allegations nor its proof meets the requirements of these cases. The fact relied on is that operation of an improved plant will not yield a reasonable return but no evidence was presented to establish the amount of capital the improvements would involve. Proof was that in ten years of operation ending on December 31, 1942, net revenues, after depreciation, had ranged between 1.6 per cent and 10.8 per cent, with an average in excess of 4 per cent according to petitioner’s own accounting and on its own conception of plant value. That accounting, it is true, showed an apparent operating loss of slightly more than $200 in 1943 but the operating expenses in that year were more than $500 in excess of the average for the preceding nine years and included a single item of repairs, greater than the loss, which had no counterpart in earlier years.
The first two alleged exceptions present no bases for establishing error in the Commission decree. The additional ones cannot be interpreted as raising a question of law although it is apparent that they were intended to assert that facts found by the Commission have no support in the testimony taken out at the hearing. It has already been decided in this Court that in proceedings before the Public Utilities Commission facts are for the consideration and determination of the Commission, that its findings of-fact are final if supported by any substantial evidence and that it is a question of law, reviewable under R. S. 1944, Chap. 40, Sec. 66, whether the record of testimony on which a particular finding is based contains such evidence. Hamilton et al. v. Caribou Water, Light & Power Co., supra; Gilman et al. v. Somerset
“it is . . . the duty of the Commission ... if requested ... to set forth in its orders . . . the facts on which its order is based.”
It was said on that occasion that if this was not done the statutory remedy for errors of law in that regard might be rendered futile. The rule of practice thus declared was affirmed in Public Utilities Commission v. Lewiston Water Commissioners, 123 Me., 389, 123 A., 177. See also Mitchell v. Mitchell, 136 Me., 406, 11 A., 2d, 898, where it was recognized as applicable in its proper field although not in the process then before the court. As it was in the Hamilton case, so is it in this one. We cannot determine on the record that a finding that “revenues have in the past been adequate,” the factual finding complained of in the third alleged exception, was erroneous because the Commission did not find and was not requested to find as facts either operating revenues or operating expenses. The question of adequacy or reasonableness would depend on the money spread between the one and the other and the rate of return it represented on the value of the property. The question of value is an additional fact concerning which no finding was made or requested.
The fourth and final exception challenges language of the Commission declaring that:
“ ‘The evidence presented relating to past income and expenses is material to the issue only so far as it tends to show future prospects.’ ”
Exceptions overruled.