*1 Md., Paxson, Travis, DRISCOLL Ed- Brownback & CO. EDISON & POWER LIGHT Pluber, Magill, ward S. t al. F. and Bradford e Harry City, La- all Brum, New York J. Pennsylvania. Court, M. D. District Philadelphia, Pa., counsel), Oct 1937. complainant. Miller, Kelley, C. G. Samuel John Pa., Knuff, Harrisburg,
Edward all of respondents. DAVIS, Judge, and Before Circuit WATSON, Judg- District JOHNSON es. JOHNSON, Judge; District equity to restrain the a suit Pennsylvania Utility Commission Public pur- order made enforcing an Pennsylvania suant to section 310 of the (66 Law of 1937 P.S.Pa. § 1150), fixing temporary rates electrici- ty grounds on the that the statute on rates are based is uncon- stitutional, and that the rates is also-unconstitutional invalid. January 27, On Commission, predecessor respondents, instituted own mo- on its purpose investigation, for the tion _ determining the reasonableness charged charged by and to be the com- plainant for electric service. Numerous hearings were held the Public Service Commission, by respondents. and later testimony and exhibits were Voluminous hearings were introduced and the conclud- Nothing ed on remains June except argument done and the de- termining of final rates the Public Commission, after consideration Utilities the record. Philadelphia, Saul, Walter Biddle Kaufman, At the conclusion of the final Pa., Morgan Scran- S. Baltimore, hearings
ton,
(Clarence Miles,
before the Public Utilities Com-
Pa.
W.
*2
proceeding.
to de-
of
mission,
it
termination
rate
hearing was held
such
temporary rates,
fixed, determined,
should
rates
and
temporary
so
termine whether
prescribed,
to provide
record
shall
sufficient
prescribed. The entire
be
be
incorpo-
per
permanent
was
a return of not
than five
centum
proceeding
rate
less
pro- upon
cost,
temporary
original
rate
the
less
de-
part
the
accrued
rated as
of
1937,
preciation,
physical property (when
the Public
of
July 13,
the
ceeding. On
complain-
public,
of such
public use)
the
first devoted to
ordered
Utilities Commission
utility,
rates for
serv-
temporary
used
in the
put
effect
and useful
into
ant
reports
ice,
of such
duly
of final
and if the
electricity, pending a
verified
determination
public utility
of
do not
reduction
commission
would effect a
to the
gross
cost,
de-
accrued
$435,000
annual
less
approximately
in its
show such
Utility preciation,
the commis-
property,
of
operating revenue. The Public
study
depre-
the
less
may
of
cost
sion
estimate such
found from
Commission
prescribe
fix, determine,
proper basis
and
ciation and
evidence
record
$5,-
temporary rates
prescription
provided.
rates as hereinbefore
the
of deter-
and,
purpose
250,000,
for the
any
“(b)
public utility
If
not
does
rates, applied a rate
temporary
mining
continuing property records, kept
have
in
$315,000
centum,
allowing
thereby
of 6
prescribed
commission,
the manner
by the
basis
on the
It was stated
for return.
provisions
under the
of section five hun-
differ-
allowance, the arithmetical
act,
commission,
dred two of this
then the
and a'ctual
allowable
the
ence between
may
after
and hearing,
reasonable notice
De-
during
year ended
gross
the
revenue
temporary
establish
sufficient to
rates
be
shall
$524,000 but the ac-
was
cember
provide
a return of
less
$435,000.
ordered was
tual reduction
equal
than an amount
the operating
in-
superior
opinion
the
to an
Pursuant
year
come for the
ending December thir-
Pennsylvania in
(cid:127)court of
ty-first,
thirty-
one thousand nine hundred
Co. v.
Power
Commission,
five,
year
subsequent
or such other
the
Util
the Public
may
proper,
commission
deem
de-
be
ity
second order
made a
appearing
on the
in
termined
basis of data
first
July 27,
rescinding
report
public utility
the annual
of such
and
rate reduction
requiring the same
year
for the
commission
one thou-
rates.
temporary
fixing schedule
thirty-five,
sand
or
nine hundred
such oth-
proceeding
pendency
Due to
year
subsequent
er
commission
Utility
Com-
before the
proper, plus minus such return as
deem
or
date of
extended
effective
mission has
may prescribe
time
the commission
from
order to October
rate
changes
phys-
to time
such net
reported
ap-
property
to and
ical
as are
proved
purposes by the
rate-making
complainant
The contentions of the
determining the net
commission.
section
are that
Law,
310 of the Public
property,
physical
the com-
changes of
under
which the
or-
may,
discretion,
made,
from
contrary
mission
deduct
der
Four-
physical property
gross additions
teenth Amendment to
to such
the Constitution of
amount
America,
charged
operating expens-
United, States of
depreciation or,
thereof,
in lieu
the order also violates the Fourteenth es
it
changes by
determine
confiscating
such net
de-
Amendment
complainant.
ducting
gross
retirements from the
ad-
Provided,
commission,
ditions:
That
questions
First,
Two
arise here:
determining,
the basis for
constitutionality
310; and,'sec-
of section
rates, may
adjustments
make such
validity
ondly,
of the order of
report
may,
judg-
annual
data
rates.
commission,
ment
provides: “(a)
Section 310
The com-
proper.
may,
any proceeding
involving
mission
may,
“(c) The
commission
the man-
public utility brought
either
forth, fix, determine,
ner hereinbefore set
upon complaint,
motion
its own
every
prescribe temporary
month,
hearing, if it
after reasonable notice
interval,
opin-
other
if
opinion
that the
interest so re-
requires,
determine,
interest
quires,
immediately fix,
ion that the
so
begun
prescribe temporary
proceedings
charged by the existence
for the
rates to be
public utility, pending
purpose
establishing
final rates shall
changing
finally
been
liave
obtained under the rates
prevent the commission
interval,
applied during
period
such determined if
month,
any other
every
or at
fixed, such
previously
temporary order was in effect.”
it has
rates as
determined,
prescribed.
Pennsyl-
provisions
above
temporary-
closely the
vania statute follow
commission, upon
“(d) Whenever
*3
provisions
York
rate
of the recent New
re-
or other
any annual
of
examination
New
act “authoriz-
state law. The
York
records, hooks, or
any papers,
port»
of
or
es,”
“requires,”
while
Act
the
any public
property of
documents, or of the
of
to consider the effect
the Commission
the
any rates
opinion that
utility,
be of
shall
perma-
temporary
rates in
the
re-
producing a
utility are
public
of such
rates.
nent
upon the
of
fair return
a
in excess
turn
public
such
constitutionality
question
The
of the
fair value
public serv-
provisions
its
in
utility,
temporary
and
the
rate
of the New
used
useful
order, pre-
may, by
Ap-
ice,
York statute was
the Court of
the commission
before
six
at least
period
peals
a trial
in the cases
Bronx
scribe for
New
York
may
ex-
period
(Yonkers
mouths, which trial
& Electric Co. v. Maltbie
Gas
of six
period
Maltbie),
one
v.
additional
& Power Co.
tended for
months,
Electric
rates to
observ-
temporary
N.E.(2d)
515. That
such
N.Y.
as,
opin-
the
in
utility
opinion
in
held
ed
filed
such
fáir
commission,
produce a
requirements
will
met
the statute
all the
ion
that-
of
value,
and
reasoning
upon such
and
return
the Constitution.
effective
shall become
prescribed
applies equally to
lates so
conclusion in that case
in
specified
the date
the case now before this court.
prescrib-
rates, so
Such
the commission.
Prior
enactment of the
statute
to.
end
ed,
permanent
shall become
Bronx
considered in
Maltbie,
Gas & Electric Co. v.
thereof,
extension
period, or
trial
such
validity
temporary
rates
pe-
trial
during such
any time
unless at
riod,
previous New York
under a
before
statute
thereof,
public util-
extension
Supreme
United
Court
the commis-
complain to
shall
ity involved
Prendergast
New York Tel.
States in
unjust
are
prescribed
the rates so
sion that
43, 43
Co., 262 U.S.
S.Ct.
complaint,
Upon such
or unreasonable.
temporary
put
Those
rates were
into
hearing, shall deter-
commission, after
fixed,
final rates were
there
effect until
but
pending final
involved, and
mine the issues
provision
recoupment
in
was no
case
prescribed shall
so
rates
determination the
temporary rates were too low. The
effect.
remain in
accordingly held that
rates,
temporary
long
they
so
were in
fixed,
“(e) Temporary
deter-
rates so
reality
rates,
effect,
and if
were in
final
mined,
prescribed
this
under
section
confiscatory,
utility company
were
shall be effective until the final determina-
deprived of
reasonable return
would be
upon
a
proceeding,
tion of the rate
ter-
unless
period.
property during
Ac-
such
minated sooner
the commission.
In
long
temporary
rate
cordingly,
so
every proceeding
temporary
in
rates
recoupment, the
provided no
means
determined,
fixed,
prescribed
are
un-
satisfy the
re-
must
same
temporary rate
section,
der this
the commission shall con-
rate,
give
quirements
final
and must
as a
effect
in fixing,
sider the
of such rates
capital
all
elements of
fair return
termining, and
rates
prescribing
to be
value which must be
making
considered in
thereafter
demanded
received
such
purpose
rate.
temporary
public utility on
final
final determination of the
public utility
If, upon
rate is
force
proceeding.
disposition
give
final
proceed- consumers the benefit of
the issues
in
reasonable
involved
such
rates
pending
proceedings
determined,
fix a
ing,
finally
the rates
in
final rate.
These rate proceedings often
prescribed
excess of the rates
last
years,
order,
meanwhile,
temporary
if no
public utility
then such
fixed,
permitted
recover,
required
rates are
shall be
often
amortize
pay
unreasonable rates and
of a
increase
the utilities
means
over
permitted
determined, are meanwhile
to make
finally
and above the rates
unrea-
represent
profits.
making
as shall
the difference sonable
such sum
temporary^
recoupment
gross
provided
income
where
for it
between
obtained
rates
prescribed
in such
or-
for the Commission
gross
der and the
of fair
income which would
consider
the elements
values
all
í
edy
provide
establishing
about and
the consumers
which must be considered
com-
good
the ele- or the
should make
it must consider all
pany
statute,
the loss which it
have sustained
required by the
ments
so as in
Th.
provide
temporarily exacting
fair return
little?
too
elements as
done,
this
Legislature
elements
what our
to avoid confiscation.
making tem-
meaning
we think is
which we
value as are considered
give
the or-
language,
to its
if it
porary
should be stated
havefany
past.” The
light
rates.
sense at all
der
Appeals
“True it is
Court of
further said:
purpose of
evident
It was the
paying
all
the final
the consumers
passing this
Pennsylvania Legislature,
rate,
take-up, may not be
including the
Prender-
act,
criticism of
to meet the
paid
same as those who
plac-
Case,
the burden
to remove
gast
*4
new cus-
rate. A few consumers
act
public. The
upon
consuming
ed
the
paying
tomers
what
the old consumer
temporary
shall
rate
provides that
the
paid.
are of
have
instances
should
provide
per
return of not less than 5
a
upon
importance;
percentage
the
minor
very
cost,
-less ac-
the
centum
our insti-
never work
small. We can
prop-
depreciation,
physical
crued
erty
of the
'
government
we refine mat-
tutions of
if
public utility,
of the
used and use-
we have to
ters to
an extent
that
ful in the
service. The Public Util-
The Con-
little details.
consider all these
temporary
ity
fix
rate
a
expresses
stitution
principles,
fundamental
per
limitation,
above the 5
centum
if the
if
and
served,
in the main these have been ob-
warrant;
go
cannot
below
facts
required.
this is all that can be
per
though
reasonable
centum even
a
Besides,
speak
when we
of the consumer—
per
than
centum.
might be less
rate
public,
the customer—we
the
in-
mean
not
rate is not the standard
centum
Diego
dividuals. See San
Town
Land &
Commission;
is
Utility
it
set for
Public
Jasper,
571,
Co. v.
189 U.S.
23 S.Ct.
is
may be fixed. It
lowest limit which
just legal period days feasible to turn rem- a of 15 to afford tire Commis- deprived legal Unaid- rights. in its order of ñas been state opportunity to sion an certainly not on is findings, value ed this court the elements rec- called search the voluminous were based. temporary rates which the ord to find Commission’s a basis basis, order, if (concur- might not WATSON, Judge District any, upon relied. which the Commission ring) . Light Co. v. Pennsylvania In Power & reached the conclusion With accord, (Pa.Super.) fully in Public Service Commission I am opinion of the court said: “This reasoning agree but I do recognition princi- my of a fundamental but a reached. that conclusion delegates ple Legislature itself that where the statute opinion appoint- powers extrajudicial tribunal state stat- That is not unconstitutional. rights property values or to ed to determine commission regulatory permitting ute matters, it by pub- and the tribunal acts charged temporary rates to be fix a' review findings long it does must make such permissible so utility lic determine possible to recog- been court has confiscation result by such determination Prendergast affected whether one Court. nized Co., legal rights.” deprived been Telephone 262 U.S. York v. New 853; Service 43 S.Ct. Telephone In Ohio Bell Co. v. Public *5 v. Wisconsin of Wisconsin Commission Ohio, Utilities Commission of 301 U.S. 514, 67, 53 S.Ct. Co., Telephone 289 U.S. 292, 729, 724, 57 1093, 81 S.Ct. L.Ed. Mr. reasoning I agree L.Ed. 1036. 77 opinion Cardozo in the of the court Justice said: v. Power Co. Electric in Yonkers Maltbie, 516, 512, N.E.(2d) 364, N.Y. 3 “The fundamentals of a trial were de- of Appeals New Court of in which the appellant previous- nied to the when rates not to unconstitutional found York ly collected were ordered to be refunded 48) c. (Consol.Laws, Law upon strength facts not evidential provisions as to similar which contained * * * spread upon the record. by the Pub- temporary rates fixing “Upon strength of these unknown New York. Commission lic Service documents have been refunds ordered Power Co. Light & Yonkers Electric millions, mounting into sums the Commis- said with reference the court Case conclusion, reporting sion but not de- meets the Law: “It Service underlying putative proofs. The debtor affords the procedure, and prior fects in proofs today. does not is know the This ample as well as the company protection hearing not essential due attempt to meet the is a consumer. It process. It condemnation without trial. element, which time to be con- hearings.” rate-fixing sidered in standpoint “From process— of due remaining question is whether the protection against individual ar- July 27, order of the Commission dated bitrary deeper this, action —a vice is 1937, violates the Fourteenth Amendment now even particular we do not know to the Constitution. or evidential of which facts the Commis- The order July Commission dated judicial sion took notice and on which it 27, 1937, only order of the Commis- rested its only conclusion. Not are the sion before the court consideration. unknown; way no facts there is to find prior report July 13, A order and dated them out.”. 1937, were rescinded. The order dated Clearly, duty of it was the the Commis- 27, 1937, July complainant directs the findings sion to make fact as affecting approx- file a tariff a reduction of basis the rate reduction was $435,000 imately gross in its annual rev- ordered, and, having so, not done its ac- enues the establishment of certain arbitrary tion was the due violates order, rates set forth in the which tariff the process clause the Fourteenth Amend- found Commission to be reasonable and Federal ment of the Constitution. proper purpose temporary rates, for the and that is all. In fixing The Commission made its rates the Com- conclusion, any should, my opinion, did but find not basic facts. mission consider findings It ma.de no from whatever which those elements possible it is determine has must be considered in a fair said Smyth Ames, 466, 546, whether one affected determination rate. U.S. 819; 1936, by 42 L.Ed. Des Moines Public Serv- S.Ct. re- Moines, Commission, predecessor Gas v. Des 238 U.S. ice Co. spondent hearings need Many 1244. These S.Ct. Commission. care, par- by it; nearly pages with the same were thousand be considered held ticularity, testimony ex- thoroughness with which of taken volumes was. they evidence. must considered hibits were admitted in to such be considered case was closed on 1937. June confiscatory temporary rates extent 13, 1937, July reduc- The first order of cases, cer- will In most be avoided. gross ed revenue of operating case, requirement tainly in this year. complainant company $435,000 a any place burden the Com- extra July like- The second order any unrea- not cause mission and should operating gross annual wise reduced the delay. sonable $435,000. complainant by revenue express opinion to whether the I no The order of forth in set (e) (a) and pursuant made to section 310 reasonable might be shown he 1, Pennsylvania Act of June opinion, the record proper, but, my pro- (effective date). These subsections open to this course now stands vide as -follows: enjoining the a decree court to enter (a) Temporary “Section 310. Rates. — Utility Commission Pennsylvania Public proceeding may, The commission July 27, order of enforcing its utility involving the rates of a up- motion or upon its own brought either DAVIS, Judge (dissenting Circuit complaint, notice after reasonable part). hearing, opinion if it be of that the the lawfulness action concerns fix, requires, immediately interest so utility for a of a *6 termine, prescribe temporary rates and The authority statute. state under pend- charged by public utility, to be such pub- Company, a Power Light & Edison ing the final determination such rate sup- corporation, engaged utility lic rates, proceeding. so energy and about plying electric fixed, determined, prescribed, and shall York, The re- county Pa. city and provide to a return of not less sufficient individuals, constituting the spondents are per upon original five centum than Commission, Utility Pennsylvania Public cost, depreciation, phys- less accrued of the Commission. to as referred hereinafter the. property pub- (when first devoted to ical brought suit complainant this The public utility, use) lic and such used statutory pursuant to section service, public in the and if useful (28 380) U.S.C.A. of the § public Judicial'Code reports duly verified of such util- enjoin the enforcement of order to ity not such the commission do show to 27, 1937, July re- dated the Commission depreciation, cost, original less accrued complainant adopt tempo- quiring the may property, commission of such rary for -its service in ac- electric rates depreciation cost and estimate less such provisions of section with cordance fix, determine, prescribe and rates (e) of the Law (a) and provided.” hereinbefore Pennsylvania which into effect went rates, fixed, Temporary so deter- “(e) (a, e). P.S.Pa. (66 § June mined, this section prescribed under 27, 1937, July the Com- The order of the final deter- be effective until shall imposing second order these mission’s proceeding, of the rate unless mination company. upon The temporary rates sooner terminated commission. July on first one was dated every proceeding in which rates on decision of a account fixed, determined, prescribed are un- Pennsylvania in the superior court of section, the commission con- der this shall Pennsylvania Light Power & Com- case of such fixing, sider the effect of rates in de- pany Commission, 193 v. Public Service termining, prescribing rates to be rescinded, order that was thereafter demanded or received such case, longer no. in this and the one of utility public on final determination of the July 27, was substituted. If, proceeding. disposition proceeding, involved in such investigation The to determine the rea- of the issues finally determined, charged by rates rates are in of the sonableness prescribed complainant January on excess of the rates in such was instituted utility public injunction, order, nent such then the determination of recover, depends upon question or not whether permitted amortize shall be prescribed confiscatory. over Con- temporary increase the rates of a means determined, finally they one sidered from rate base and above the rates differ- from fair and reasonable and represent considered such as shall sum complain- obtained another not be. The gross income ence between the tempo- ant, being on entitled a fair return such prescribed rates property value used in gross income all its rary order and public, question arises under the rates service obtained have been would during property the as what the “basis” constituted applied if finally determined tempo- applied in ef- to which commission temporary order period such rary per rate of 6 centum. fect.” (a) these (66 P.S.Pa. Section act complainant § contends provided (a) as to provisions violate the subsections fixed, Constitu- “Such so that: Amendment Fourteenth termined, prescribed, shall be suf- States. United tion of the provide return of less than ficient to to be these subsections assuming But cost, centum less five complainant says that constitutional, depreciation, physical prop- accrued is uncon- pursuant them made erty (when use) first devoted to confiscatory be- stitutional, it is in that public utility, used and useful prescribes” “fixes, determines cause it public service.” yield a fair return do rates which devoted its the fair value of duty It was the of the Commission public use. findings to make to furnish such the outset stated It should be re facts would inform on a body. rate-making is not a this court as to whether or not view those who had aof fixing the function been affected determination had been the common- utility ultimately rests deprived legal their constitutional private control right to has the wealth. It rights. In the case of Pow business, necessarily corporations, whose er Co. Public Service Commis character, is affected with monopolistic in sion, supra, the “This is but court said: control, where That interest. principle recognition of a fundamental *7 involved, is exer- of rates is fixing delegates pow- Legislature that where Pub- agencies, the its through one of cised extrajudicial appointed to an tribunal ers exercising this In Utility Commission. lic rights to determine values public both rights of control, matters, it tribunal acts and the be considered. corporation must and the re- findings that a must make on a return company entitled to The possible by it is deter- view the court property devoted of its a fair value on by one such deter- mine whether affected high be so cannot It use. deprived legal has been mination of the service to the exceed the value rights.” be so low to con- consumer and cannot In Telephone the case of Ohio Bell Co. property devoted that fiscate the serv- v. Public Ohio, Utilities Commission of Railway Service Co. v. ice. Public Board 292, 300, 724, 301 U.S. 728, 57 S.Ct. 81 L. Commissioners (D.C) of Public 1093, Ed. the court laid down the law as 979, words, In F. 984. other com- 276 follows: up- ask a fair pany entitled to return employs which on value of that it “The fundamentals trial a were convenience, appellant for nied to the previous- when rates ly no to demand that more ex- is entitled collected were ordered to be refunded it strength the services acted from than rendered of evidential facts * ** reasonably spread upon worth. Neither is entitled are the record. Smyth Ames, anything v. more. 169 “Upon strength of these unknown 418, 547, 819; 18 42 L.Ed. S.Ct. U.S. 466, documents refunds have been ordered for Railway Philadelphia City Passenger Co. millions, mounting sums into the Commis- Commission, 39, Pa. v. reporting conclusion, sion its but not the 642, underlying proofs. The putative debtor solely proofs today. not know We are concerned here the does This perma- of a disallowance hearing proc- allowance the fair essential to due physical without trial. braced in the value of its is condemnation actual ess. It * * * property.” process— standpoint of due “From the Commission, however, took rate The a against protection individual of the base as paragraph set forth in 10 of its this, arbitrary deeper vice is answer, action —a $5,900,000 represents par- not know even now we do reproduc- that $5,350,000 allowance of of which or evidential facts depreciation, ticular tion cost new less accrued on judicial notice Commission took plus $150,000 capital working Not rested its conclusion. $400,000 which it The going concern value. way unknown;. no the facts there are operating $2,020,044. revenue for 1936 was * * * them out. oper- to find From this the Commission deducted ating expenses $880,400, ex- concretely: retirement problem more put the “To $218,000, penses $120,422, and taxes of appellate court possible for the was it how profit $801,222. leaving net The Com- intel- facts and law and the to review the 27, 1937, prescribed mission then on findings ligently decide that cent, per rate of 6.20 evi- by supported were yield $366,222, produce will a return of approved it evidence dence when the reduction in the annual revenue and unknowable?” was unknown complainant $435,000. of about Railways v. United the case of 125, 123, 250, But the Commission West, 50 S.Ct. failed to deduct 280 U.S. an gross $114,355 from the said: “What annual revenue compensa expenses, taxes, pay increases, other just constitute roll nual rate circumstances, pensions etc., many employees, depends which for the tion of year .exercise 1936 would by the reduce the net return to be determined and must $213,067. hav judgment, represents enlightened a rate 3.61 cent, per $5,900,000 facts.” the rate base of all relevant ing regard to Ames, Smyth Commission, year used and for the in the case same L. $214,245, ended a return of S.Ct. 169 U.S. June years per some on a rate of 3.63 If many agohtated cent. other ele- Ed. capital considered must ments of been value had consid- facts” which “relevant ered the Commission which under the rate: laid down rules value, the. “And, in order to ascertain base, do in both the construction, cost original accordingly return rate would have permanent improve- expended in amount clearly been less. confis- ments, and market value the amount cent, catory. A rate of was allowed stock, present com- bonds Com- Service of construc- pared with the cost produc- complainant mission in 1936. capacity tion, probable earning proof ed substantial to show a rea- prescribed particular property under *8 sonable rate for it is at least cent. 7% statute, required to meet by the sum and expenses, operating are all matters the are Does the fact that rates fixed consideration, given to be and are from the save the order may just right in each weight as constitution? We think inhibition of .the case.” not, question is an it does and that this Prendergast New v. should be added swered the case of To these elements Company, Telephone 262 U.S. In DesMoines York “going concern value.” 153, 165, 49, 466, 469, DesMoines, 43 S.Ct. L.Ed. where 238 67 Gas Co. U.S. said: “Nor did the fact court that 35 S.Ct. merely pre speaking “This the orders of the Commission of this value said: in property right,'and is a scribed rates to be effective un element value determination, deprive final determining in the til its should be considered upon Company right to relief at property, which its value of the required fair return hands of the court. orders right has to make a owner a put ef although the new reduced rates to be into privately owned the same is when * * * final given They Includ- fect on a date. were dedicated to use. during legislative period as usually acts going reckoned ed in value they pend in effect necessary organizing and which should remain investment determination; ing em- the final and if business which is not establishing the
9 confiscatory whether lor this to determine is prescribed were court rates legally reason- can deprived of a Company would be during such serv- provide ice, temporary rate for electric a able return en- final remedy, pending their the determination unless period, without Upon course, if considers enjoined. it can it should be rate.” Of forcement Supreme were Court rates which the showing that such reduced those elements in order Company was entitled confiscatory always are said pending or- enjoined makes an proper form a rate base and enforcement have their completion confiscatory. The court der is not the continuance it done rate-making process.” if this were further said that prevent fixing of a would recoup- argued been It has final rate. be a rate for it would act provision of the ment elements, which follow. does York infirmity New in the avoids the lias Supreme in cases numerous pointed out act which fixing in considered said must be in ef- argument Case. This Prendergast rate, need not be considered with the same legal proper that it is fect means care, particularity, thoroughness future some if at violate the Constitution they fixing which considered in may whol- violation be corrected time that ly rate, final must be considered words, part. per- or in In other it is extent that enable the Commis- fectly permissible to take right all fixing confiscatory, sion avoid tem- it money if one’s force rate, porary for neither the so, Constitution partly returned to him. If that nor Court has made ex- long be violat- how Constitution ception confiscatory in rate be- party injured during ed which time the cause is temporary. the rate In the remedy? May for a it be without Case, month, Bronx provided Gas the New York court (c) section Prendergast said that Case decided (66 (c), for a trial act P.S.Pa. § period provided things, several one of year 6 months that: (d) give “The rate must P.S.Pa. a fair (66 section 310 of the act interpretation capital of the return (d) ? Such all those elements of § requirement value which must be constitutional is unsound. considered in exactly the final That we rate.” what Furrher, provision recoupment understand the case to have decided and entirely pro- is not effective. It does required the Commissionin the case money, vide for interest of the company bar in fixing the rate to consider during loses while period, the trial the necessary capital elements of value fixed, if being final other than cost less accrued de- require, did so portions considerable preciation sufficientlyto avoid fixing a con- lost, the principal might never be recover- fiscatory temporary rate. The decision provided ed. The act that if the Bronx Case effect differs with the higher arc than the temporary “then law declared Prendergast Case. public utility permitted shall be recover, by amortize and means a tem- In the case Laclede Gas Co. v. porary increase over and above the rates Missouri Public Service (D.C.) Comm. filially (section determined” (e) F.Supp. 806, 809, the court said: “It is act, 66 (e) P.S.Pa. the sum lost oil § earnestly urged by and inter- defendants the temporary account of rates. ifBut the venor that the Commission’s order should *9 consumer discontinues the service or move permitted go to into effect because it is territory, out of the as doubtless in a intended temporary. But, as shifting population done, frequently pointed out, we have the order itself is utility many the ly cases will be absolute- Moreover, not so limited. the constitu- remedy without for section of 305 prohibition against tional property the taking of (66 1145) act P.S.Pa. “deposits abolishes § process due without of law con- payments.” to secure future exception tains no permitting a taking some or a taking during a limited The Commission entirely relies almost period of time.” case of the Bronx Gas & Elec- Maltbie, tric Co. v. 271 N.Y. 3 myself N.E. Speaking for alone, it seems to (2d) escape the rule laid down me that section (a) and (e) of the act Prendergast Case. In the Bronx Gas are unconstitutional because permit the court said question Case that “the sole commission fix and maintain rates as cent, cost, original low as con- depreciation, without less accrued capital value elements sidering other said often Supreme Court which the bé done useful property used and value consti- The test public service. rate- what a is not act tutionality of an it, what under body does making
permitted to do. the Act (c) of Under section fix is authorized inter- any at other “every month time this case may in and it val” capital elements other
give attention depreciation cost less value than rate. legal fix a wit, now, October And Utility Commission Pennsylvania Public restrained hereby enjoined attempting to enforcing or any manner' 27, 1937, estab- enforce its forth therein. set lishing the MINING CO. COAL RUN
SUGAR STATES. UNITED
No. Pennsylvania. Court, E. D. District McCracken, Phila- Montgomery Aug. 12, 1937. Smith, Pa., Ristig, Deibert & delphia, C, Wolfe, D. Charles Washington, Pa., Smith, and Robert P. Philadelphia, C., plaintiff. D. Washington, Neufeld, Sp. Atty., Bureau In- Moe Revenue, Ganey, Cullen U. S. ternal J. Bethlehem, Pa., Sharpe
Atty., Andrew D. Rita, Sp. Atty. G. Assts. to and Frederic Gen., Morris, Atty. W. "Asst. James Gen. KIRKPATRICK, Judge. District under the Tucker Act This is suit 24(20), 41(20) (Jud.Code U.S.C.A. § § year of taxes for a refund recover $6,455.25. overpaid in the amount *10 admittedly plaintiff, due refund applied deficiency defendant but the (also admitted) amount larger ain it, against credit and con- year 1917 plaintiff pay any- refused to sequently thing.