136 F.2d 273 | D.C. Cir. | 1943
We have to review orders of the Securities and Exchange Commission which required the petitioners, the Middle West Corporation and its subsidiaries (1) Central and South West Utilities Company and (2) American Public Service Company, to end the corporate existence of either Central or American and to substitute a single common stock for the present capitalization of Central and American. Both Central and American are nonoperating public utility holding companies which perform no services for their subsidiaries. The substance of the attack upon the orders is that they require the elimination of preferred stocks and that they are mandatory. Petitioners themselves had submitted to the Commission under Sections 6(a) and 7 of the Public Utility Act of 1935 a plan which would have eliminated one of the corporations, but that plan would have permitted a preferred. stock and would have become effective only if approved by the security holders. The Commission, in the same orders, disapproved petitioners’ plan.
Section 11(b) (2) of the Public Utility Act of 1935
The Commission’s findings and opinion
These and other findings of the Commission are supported by evidence. There is no dispute as to any basic fact. In our opinion the findings support the orders. It may reasonably be thought that a preferred stock in this situation would cause voting power to be inequitably distributed. When earnings and assets of subsidiaries are not sufficient to provide for any of the stock of a holding company the considerable degree of security which the public attributes to preferred stock, it may reasonably be thought that division of the holding company’s stock into preferred and common will “unduly or unnecessarily complicate the structure” of the system.
Petitioners show that their financial position has improved somewhat since the Commission held its hearings. Section 11 (b) authorizes the Commission to revoke or modify its order, after notice and hearing, in response to changed conditions, and there is no reason to assume that it will not do so if sufficient occasion arises. Nevertheless petitioners now ask leave, under Section 24(a) of the Act,
Petitioners make a number of contentions which we have not discussed. We should have to discuss some of them were it not for the opinion of Judge Maris in Commonwealth & Southern Corporation v. Securities and Exchange Commission.
Affirmed.
49 Stat. 803, 821; 15 U.S.C.A. § 79k (b) (2).
§§ 1(b) (1), 1(b) (3), 15 U.S.C.A. §§ 79a.(b) (1), 79a(b) (3).
11 S.E.C.
15 TJ.S.G.A. § 79x(¡A
3 Cir., 134 F.2d 747. Cf. North American Company v. Securities and Exchange Commission, 2 Cir., 133 F.2d 148; City National Bank & Trust Co. of Chicago v. Securities and Exchange Commission, 7 Cir., 134 F.2d 65.