Market St. Ry. Co. v. Pacific Gas & Electric Co.

CO. & ELECTRIC PACIFIC GAS RY. CO. MARKET ST. F.(2a> 633 <§=>298(I) serv- 8. Constitutional & GAS —Public CO. v. RY. PACIFIC MARKET ST. not Act Utilities <§=>2 ice commissions —Public CO. et al. ELECTRIC unconstitutional, denying judicial review California, D. Court, (District D.N. commission. May 28, 1925.) uncon- § Act Cal. not Public Utilities way denying process by stitutional, due No. 1422. orders; finality judicial review of commission’s extending the facts not its conclusions on giving preferen- Electricity <§=>11 1. —Contract jurisdiction. to to its facts held right with tial to way right by ease- property create no by Market Street Equity. Suit ment. giving merely Contract Gas against Pacific Railway Company right company preferential be railway to street injunc- & for Company and others Electric prop- current, no supplied erty right way created in electric with injunction denied. Preliminary tion. compa- by of easement ny’s lands. K. Abbott, Cannon, William M. W. Francisco, Treadwell, E. all of Edward San supply elec- Electricity <§=>11 to 2. —Contract preesenti. generated tricity not sale in Cal., plaintiff. for to supply to electric to Contract Susman, Mannon, Jr., H. J. M. Leo generated preesenti, thereof sale not a future Francisco, Cal., Matthew, Allan P. San requiring Cal. § Civ. Code under for defendant Pacific Gas & Electric Co. subject can be to which title to sale though Taylor, immediately transferred, Carl I. Wheat and M. Woodward pos- potential abrogate doctrine of does session, section erty. both Francisco, Cal., of San for defendant sale, agreement within for an Railroad Commission. prop- interest creates no GILBERT, Judge, Before Circuit BOURQUIN, KERRIGAN and District regulate con- Electricity <§=>11—State 3. can Judges. public consumers. utilities with tracts regulate can, police power, The state consumers. utilities with contracts of its KERRIGAN, Judge. District This — Enough authorize Eisctrioity <§=>11 brought bill 4. injunction, by for an the Market change are not rates of contract Railway Company, Street corporation, fair, just, or reasonable. against & Company, the Pacific Gas Electric power company’s con- Point that electric corporation, the Railroad Commission of per harmful changed be shown to be se rate must tract to the is the State of its several mem- can be interest before it finding, commission’s made untenable bers, constituting commission, such re- evidence, rates sufficient not interfering strain said defendants from with fair, just, or reasonable. plaintiff’s rights under a certain written change Electricity <§=>lI— 5. Commission’s contract. adequate public in- rate to afford is in return year 1909, plaintiff’s In the predecessor in terest. interest, Eranciseo, United Railroads of San company’s Change commission of electric a corporation, was the owner engaged of and adequate afford contract return on the property operation of a railway system street value service, interest, is in the and so author- city. Eor the acquiring ized. constant, permanent, and reliable source of — Electricity <§=>11 supply energy, of electric made said United Rail- Rate contemplated parties public service, when ject sub- arrange- roads at entered into commission. ment for the formation of corporation power company’s charter, In view of au- be known as the Sierra & San Eranciseo carry thorizing ity, it to on business as util- Company, Power and its exercise of of eminent do- preferential main, and recitals electricity. Previously furnish it with railway company with street to furnish elec- Company Stanislaus Electric Power had be- tricity, made, held when the contract was designed properties, owner of certain come contemplated a dedication generation power, electric sit- public use, m the so that rates the middle fork of were to uated on the Stanislaus regulation. properties river. All of said were mortgage, and at the time mentioned Change Electricity <§=>11 — difficulties, by right their owner was financial commission held not to affect given contract. yet power plant completed. Eor the Change by provided by commission of rate above mentioned the purposes creation of furnishing contradi of elec- arranged, together railway tricity impair pro- held* street not to it of acquisition all the with the giving railway company preferential vision power. Company Electric the Stanislaus Power REPORTER, SERIES 2d 6 FEDERAL principal consumer, Railroads, in- thereto its its United on sale. Pursuant' foreclosure receiving and, aEeging from accomplished, application, such that the con- corporation was its backers suffi- tract rate would from United RdEroads and be commensurate with its it to ob- increased operation. to enable costs of Railroad cient financial assistance The plant, money completion Commission, however, of its tain for the instituted on its own prop- motion a proceeding, placed of said new it became the absolute owner which RaEroads in erty. category United the as all same prem- these other applicant’s in consideration of Thereupon, consumers. power com- Railroads, said On October ises, 22, 1918, United said increases were or- Compa- Trust Knickerbocker dered on pany, rates, including all the establish- those mortgagee ny York, special ed hearing of New contracts. At the United, that certain into August 31) on entered expressed willingness Railroads which writing, support with interference power company contract the under abnor- By its terms United of. mal complained conditions, reserving, all however, is-here of its power company rights. turned Subject Railroads over stipulation to a by owned and conduits transmission lines in ease it should sue for and-recover it certain other former, and furnished paid amount in excess of pro- the rate of the con- carrying out facilities vided paid, interest would be expense in- being put to some tract, besides United Railroads for a acquiesced recep- plant for adapting its cident to increased rate. it was in whieh in the form power January 1, tion of the On par- .The said contract. under long years to be received leased for a term of to the Pacif- average net agreed upon an ic Gas & Company, ties Electric corporation, 7% paid for the hour to be per kilowatt defendant herein, mills years, a term over power rights, including those under the contract. 1, 1909, and commencing March Ever since said time said lessee has been in quantity, annual a minimum possession for provided of the properties, sup- and has be in- contingencies might in certain plied (or United Railroads its successor, authorized was The herein) creased. electric surplus to others to sell use accordance with the terms of the first subject to.a purchaser, required contract. sup- to a the latter right of On June 1920, the RaEroad Commis- cent, It was requirements. ply adequate a surcharge sion added per of 15 should pressly provided the contract rate in an order based on the and as- the successors binding as weE of the Pacific Gas & Electric respective signs of Company (hereinafter called the electric parties themselves. company) to April increase all its rates. On incorpo- company’s The 19,1921, per súreharge articles a 10 added, tíent. was complete powers to upon it whieh, conferred May 27, 1921, changed ration on was to 6 utEity in the distribu- per cent., operate function retroactive- rights, in- Its water power. ly. electric By tion of orders dated December succeeded, were ac- whieh cluding those to March 1924, the rate fixed was at 8% whieh appropriation notices per quired mills kilowatt in some hour, particu- energy to hydroelectric specified figure. lars was reduced below distributed use was by their generated hearings Plaintiff had notice of all before lines, extend- Its tower purposes. pubEe for RaEroad appeared Commission and at all Cal., county, in Tuolumne ing points objected them, and at each it to the mak- other central Califor- Francisco to San orders, as well as maintained their "upon constructed points, were nia inapplicability to its contract. Jan- Since pro- through domain eminent way secured uary 1, 1920, when the leas- was com- whieh of the suits ceedings, one company, plaintiff ed to the paid electne has contract was day on whieh on the only rate, menced and has lia- denied its years this con- of nine upwards For bility pay anything in signed. excess of it. par- by its several duly performed tract was On June electric against plaintiff supe- ties. commenced suit August, 1918, account of abnormal of California, rior court of the state in and expenses, operating county of San Francisco. increases In Janu- Railroad 'Commis- company applied, ary, 1925, was ordered in favor of authority to increase $420,925.44, of California the electric sum sion the differential exempted representing between speeifieaEy the rate electric fore tention tract of roads to contention, section issues, den power company had not been dedicated to its action based on orders are was concerned. present sale benefit, but introductory court right by’way of easement lic Utilities tract” stitutional, process” clause) does further tiff’s findings are the Railroad Commission of rable cannot be affected will particular ment, claiming to enforce to and violates other opinion. court ant is eral sion which whom named in ed, plaintiff Constitution of the United States obtained an order (2) (3) judicial As More With Plaintiff relies on article [1,2] invalid, the dividends subject that the that the Public Utilities Constitution. contract, and hence never was injury forbidden, company, although contract such judgment, use company; it clause), and on section the ease prosecution to create particularly, August 31,1909, had Railroad Commission unaffected regard Before be purport regulation Immediately review of the the contract and that fixed Commission; void, enjoined have no section 67 prior to the execution of merely first, because plaintiff to a because not made Act rights in will been contentions: filed its bill orders hereinbefore referred to of electrical then land or water also that MARKET ST. RY. because result to proceeding the contract discloses defendant electric (St. 1915, signed any property rights, for the of the Railroad Commis- of the electric It them; of the state court suit. 1722 of the temporarily it fails to as the so complaint impose a is provisions tried favor of United thereof, to consider (2) thereafter, that, the establishment far as that potential facts in averred that Fourteenth second multiplicity or in the lands of the created plaintiff enforcing electric current-. that it energy, of one here involved (1) does filing p. California 1, to these this unless general rates; Act for the judge (4) That is 161), '§ specific is made provide evidence preliminary provide of the fed- restraining possession. and before court, it. of increas- repugnant 10, California if defend- (the company; that these effected (the plaintiff’s CO. is uncon- Amend- of suits written irrepa- and in no in- major plain- enter- “con- Rail- and Pub- e state “due bur- con- this and (1) PACIFIC GAS F-CSfil be- ice within the ment Co. v. Public federal Judicial U. points, Arkansas tracts'relating'to lic from the id.” In re Guilford Water Union Producers’ impairment utilities it future road held well settled. “The courts hold an ants that thereby Utah, more, or Ct. state to state to property hence Commission and that it thority strictly S. Ct. duced case ly Code, 1730, istence in the normal sense Service Constitution, that electrical ed abrogate tial ated This Civil Code (2d Ed.) ^[3] between the personal utility property, title which transferred S. implied beyond Rates, that the applicable to possession. holding m the provision 258 U. § cannot Passing On the be assumed that off-spring of we Dry general welfare, limited upon the law of sales with Corporation, rendered regulate' 67 L. Ed. lawfully very the common-law doctrine § Natural Gas Co. states that and the highest (as & ELECTRIC CO. think, guaranties of the state or requires 118 Me. 133. Plaintiff has cited us 63 L. Ed. these eases. Transportation Co. v. Railroad created reservation of the property. provisions future Goods contract future, their is be even nature of their question from the seller to 40 S. Ct. corporation operating called an praesenti, contrary. termed Code It seeins have the contracts of its partially public service, entered in 261 U. S. private exercise sales of consumers the law now 705; Ogden points no interest either though said State has not a Utilities animals, remarking Co. v. obligations 367, not been construed 248 U. of 1909 was well as the which is merit, (Comp. St. § it will not be extend- ease, S. of the and that property. agreement for 108 A. raised doctrine has been section 265 consumer, contain but what v. Arkansas Rail can be obvious, 9 A. L. R. Company’s Hence it crops guilty of the Williston, subject of Georgia S. Commission both 381; subject-matter wholly police power Portland potential 372, 376, sales of the of contract there is immediate- latest) to taking up not a 446, term, 66 Ed. of of which Further- however, pei-sonal in Civil must be defend be federal in real is laches, L. of the Public poten- gener- buyer. inval 1242) 1420; Sales, 43 S. Serv to no pub 239; 450; sale, pro- con sale sale Ce au- no is REPORTER, 2d SERIES 6 FEDERAL lic Ed. wards, Mo. Public 182; R. A. 556, 561, A. R. facturing Co., 185 N. C. Corporation Light & are unanimous. 466, 547, 18 S. Ct. dated sissippi What tion and above turn Commission, Ct. Ohio the electric R. C. in its order of pany sole ask for the service point In each sonable rates.” 16 Cal. ly fixed such order sion on sufficient evidence has found of Dry express unreasonable. the contract to derstand plaintiff’s perienced tained that the hearing. in 569, upon evidence, modified rate tion, 37 S. Corporation, supra. It is well established that in a favor of the that “the rates and the Service 602, 1317; 432, 236 S. W. purpose of making Dec. Goods State made is proper Gas (N. S.) 1134; Salt Lake per Plaintiff next Service Sierra & made it can * * * 61 L. Railroad Traction finding the 3 only taxes. On its first Darnell rate fixed Mill 481; administrative other se harmful to U. S. Co., 212 U. S. the actual is an it to the ex rel. company, Ct. schedules Co. v. Commission since there L. operating after Ed. untenable, Creek Co., 382, 15 Commission utility October 19 succeeding conclusions reached In other 701, have that it in and Utah, 191, changed. increasing San points, unreasonable Smyth Ames, are not contention, v. Co., Utah, Id. Commission 1216; 244 1918 were made 418, 42 L. Ed. City of Harrisonville v. 715; Edwards, Georgia Coal Coke 61 L. Ed. argues Francisco Power 939; value of the But in Ann. the rate of rates and contracts 52 charges express renders is U. S. 22,1918, it could 858; R. Dec. v. Utah rate must be shown costs and strong presumption public Willcox for the reason that v. & words, just, body after a full W. Va. hence orders there is 19, 22 203 P. urges, service, the dividends of C. Cas. S. Cannon Manu 116 S. 388, Darnell v. Ed Public Id. any Copper 244 U. S. Missouri, finding, one. v. City v. fair, 1317; changed by the commis áre invalid. lawfully it is main- Co. 789; 24 v. Consoli all of said 662,100 entitled 169 391, a fair Mobile & 819; 29 itself was admitting a by event the lished the eases deprecia over and 160, express changed E. v. 18 interest Water or rea Service 173 P. we regula- S. Co. an ex Union U. S. 48 L. 37 S. based Utah 61 L. Pub Com The Mis 631; 170. Cal. 564, un- Ct. re Id. an v. page state this the inasmuch as companies creased. theretofore established charged. thorizing stituted way, specifying chise for some crease granted der considered. The facts were that sion investment returns. public interest. Light quate value of paired service is in the interest of devoted to the such service continued reward on the former rates should lic use.” United province consumer, a rate E. says: most too authority. “It is now settled law In reasonable return between the 557, 563, rates with a view to authority Publie Utilities Commission for an without money maintenance threatens does not meet 561): the ease return a casé m & by regulating body sought of a efficiency “The utilities therefore States, which the franchise Company’s court said the state L. rates. Power the It was contended conditions have rendered onerous of the Railroad the construction of 108 A contract between the After well prevailing contract, And ability Ed. its investment devoted to a traction 7 A. R. A., public rate-regulating body authority upon provide property basic already the franchise ordinance con interfere, ultimately dependent upon time, settled investors, relieved of cities and the street service, The commission made T. & L. it Co., operating the result in the franchise Salt Lake is no (52 U. S. principles a Public Utilities Commis the utilities commission Service changed exercise conditions Utah to the supra, proper maximum 108. And that what When, cited over it. value 450) devoted to the service Utah, primarily the rates authorizes a company applied its action that, so utility F. impediment require affording utility Commission is al under this fran require a franchise was the a (In the Maine court Rates, return Railway doing ordinances are has been rates of such therefore, burden City In franchise au utility public, an rates utility’s re Guilford question long street rail agreed the citation of answering within the to attract respect city that, is in 34 S. Ct. were in property upon which it equitable that 118 Me. v. Utah railway change public. its or a rate as the to the v.Co. estab- P. since pub- ade- city up- im- in the the at a thereafter could tract U. S. Producers’ when the contract considered. lic yield to increase to meet the thorities the sole proper return ty man v. has in cited suasive, to the earnings affected has undertaken of a state.” way companies, both under the Constitution tween the cities of this state Commission of the State of California, 251 continues, unless and until the and the was fixed to modification at power way company and to the ed is made to gard reasonable, in that Every contract-fixing without fixed conditions, and them. Either binding simple one application to the utilities prerequisite It ^[6] fair, just, too delegated utility, date neither is created conditions which will was regulation eases, 228, 231, found public utility, It is next express Towers, low, paramount power reason the franchise the consent of the statute, constitutional appear that the rates and enforceable. of the state to so also held in that case that it is not by agreement, rate that is to the expenses Transportation invaded nor public which we the commission and reasonable state, providing it to contract is immaterial. Yeat present ease), and construction of a pipe existing to the exercise that, terms surrendered the MARKET ST. by legislative being again respond to the have effect party may, nothing make its utility should be insufficient is attempted, regulation. urged by public S. Ct. interest. Under these au unfair and always subject Md. some was made in the value of the when the so whenever relieved become ordinance, and if it be that all regard rate entered time contract rate that the agreed operation, adjust it service must also be disregarded, public yet are either it was still prior existing other arm is whether, at the public. other, Co. v. Railroad by both to the may 95 A. however, Neither become a Defendant has commission, if the fare as enactment, for as unfair RY. CO. the latter did unreasonable. the contracts the original made, service, under exist- highly Legislature street establish may disre- state, but that a T909, 158, 160; sovereign the rates the rates too into be- between proper- existing subject change or power party, v. doing make make pub 6F.(2fl) 239; per corn- rail- rail- high rate fix- un- PACIFIC GAS & ELECTRIC tion. the consumers tracts were were situated public regulation. with the Ark. cal with those of public service; line recitals of the contract beyond March contemplated sale of pra. contributed Clear as all its contracts would become extended over Producers’ pany, Johnson are conclusive that on Clear Creek main was exercised its veyor ed its terest; the Commission of the State of articles of pany were exercised propriations to which the the orders there succeeded were ter than in the been made. This cannot be have been opinion in the state court: 26 S. Ct. Manigault er ord that such dedication had The ease The circumstances enumerated The Assuming, was well known to predecessors professedly in the propriety of the orders under consequence power company held itself out as a was conclusive evidence is an abundance of evidence Creek were framed so as Its facts in fact the date of the public; powers of eminent natural Spelter Company and a.product devoted to essential. To 127, 50 L. Ed. 230 W. void, reasonable doubt of the Railroad Commission sale of “preferential” in their incorporation Transportation by just cited, $45,000 in cash. All not been dedicated Company Oil & making at a distance of (a Springs, periods language and, taken made by that the latter is, gas. tenth the case at to service of the many respects general hydroelectric energy; Gas Co. et Ft. Smith the we 69 L. might undeniably sake power United Railroads, entered into Its power company and decided as think, itself, they this, CO. Ed. —; years. together course of conduct of itself be held producing Co. v. Railroad had undertaken Judge Johnson’s summarized bet- U. bar. There the of eminent do “The water company, argument, distance in the permit Spelter one public use.” al., others for the company conclusive of at that such with a view power August 31, miles nature and are identi- had devot considera- in the rec- After by Judge public use public in- consumer contracts lately the con- with the Id., indicate service, domain public. v.Co. would U. S. fields pow- com com- pur- was 63T ap- ex- su as REPORTER, 6 FEDERAL 2d SERIES pany’s Railroads Its fourteenth duced, preferential times lic to contemplated public section sistible that ers than which that service veloped for the is tion pellant bound months’ written cise its pellant’s business When these lant sale of carry mits to use the was not it reasonable matter of gas on less than means of means but of a size deemed without eeuting mers. The former became taining rights ercised the proving tial ity Arkansas mission serve That the obliged “Even if it contemplation pufilie. energy the others the Clear developments course of with the its second consumer. The yield to the on regulate such shall be range to take notice first gas publicly within the power the increases which were provides: corporation, the first of these and before execut- 9 9 practicable Railroads business as a appellant, were bound obtained a condemning commodity which is Supreme transportation. and without shall be and/or transporting general knowledge that natural was made to these contracts preparing course 9 9 * facts leave ones, and “furnish such potent 12 months’ written be conceeded 9 under the statute free section possibility that, notice, expect opinion, way. purpose of distribution to subject superior are considered were some such Company itself, operations. to use or “Power of time Court said: charter well corporations. or reasonable. fact in the of the fact increase Appellees, eminent domain in addition to “preferred preferential necessary in order to all provides at highway, it A that the Creek conclusion way the Arkansas com- cluding affirming which pipe that time to exer rights to find some other right demand in the ease at bar additional * * granting were that was with authorizing right. is also preferred company at all unremunerative, Railroads Com utility. any portion fact gas to sell to oth the rates. extraordinary radius of line was built generally de Company over case that that United can be in its third in contract of the under them intended as parties had They were aas that customer,” * made, know that a substan- notice, ** the valid- .upon apparent 9 * * ” contracts * * *, certainly Nor was is irre eonnec-. * 9 * private It is appel custo- pub pro toit per ap ap ob- 12 ” .allows ticularly to exercise inception become either Railroad tional, because, as contended Public Pacific Co. v. the intervention made sonably supra, and bound mount, ment.” Northern the state eventuality Traction Paul to the contract F.(2d) 359, ject-matter, & sion to be relieved 680); Cal. Co. a contract to an increased sistently two months N. E. stroy the remain larged than City fact ed a Court of that it has livery extensive desired As cement less than 9 facts”? even heat, v. fixed undertaken, United abrogated, & proof dedication but, because A have no of notice.” Plaintiff has been by all the contract’s Utilities Act of Georgia 268 Pa. in their number several low unimpaired. Chicago, 292 Tacoma did not with what light, Appeals for this single question judicial review of the territory mill, Railroads 598. As was Accordingly, as sixty-seventh not been either Co., supra). that such Suburban in 1917 it (Salt Supreme Railroads. 16 Cal. ago: 363, Spring actually occurred. years unreasonably high or unrea were 159 P. independent rate; but the contract doing 243, 110 A. 778. incorporated in their Public and other electric of the made its intervene, and its Lumber Pacific to the Railroad citing unsold might, at Lake of the nature “A from a rate power purposes its activities were so subject presumably Company, Valley abridged, for 'at a service Ill. modifies use. Court has Chicago Service 6,196 consumers, California, public Water Co. interest, lawful, that under its we City section, said Union required to submit Railway Co. v. St. at Co. remains: both Hence L. R. A. circuit, terms noted that with- hold Water any v. Utah service was its terms (C. just orders of the change of a Corporation, does not de to the extent parties Railways plaintiff, “it large mines, contemplat- Dry unconstitu- time of de the Circuit R. which had So time after that when (Southern plaintiff’s C. less Commis railways v. Oak Co., such an its sub long over an C. parties 1917E, Is the agree Goods A.) terms Light as their were have par- than con Dec. 173 en- in- as 4

MARKET ST. RY. CO. v. PACIFIC 6 F.(3d) GAS ELECTRIC & CO. justifies serv- the infer Regarding plaintiff’s right to receive stantial in character necessary ice from ence or Company the Power its lessee at conclusion that the facts jurisdiction agreed did price property, as and a decrease ex of the commission taking ist, property, general principles rate then, as a under taking by plaintiff regarding proceeding certiorari, it is that its de contended this is law, is process without due for the'reason cision of such evidence effect gives binding reviewing that it no the Public Act Utilities conclusive interpreta judicial to have a the facts court.” tribunal review In accordance with this body rate-making act, acted. court which the tion of section of the re If, as of Richard held, we have this sub- viewed the evidence in the cases contract was ject subsequent son the State of action of the rate- v. Railroad Commission of making body, P. Klatt v. proper California, exercise of the au- Cal. thority body Cali contingency within Railroad Commission State P. and Mc entering fornia, contemplation Cal. contract; might Cullagh into of the State fairly and it be ar- Commission gued if such 210 P. exercise should result in Cal. higher (1) the establishment rate than From has what been said follows: originally stipulated parties, between the That into on the service entered Au- gust correctly could not characterized United Railroads and between taking of 22,1918, unless the new be the onwas October higher proper been, than is to afford a and at times has since all regulation by return the value of the de- the Railroad Commission of utility pub- California; (2) voted the service state of that the Public charge, by authority Act, lic. This does not but is Utilities arid the bill theory regulated framed on the which said commission said con- August tract, provisions is not to the exer- not violative of Constitution; (3) of the state with re- federal police cise gard complained valid, proper and that such rates are herein of are untenable, legal. position respects as in Plaintiff’s motion This inviolate. already injunction preliminary cited. a the authorities therefore denied. shown good present Plaintiff, therefore, make Judge, GILBERT, Circuit concurred. that it contention, must establish judicial upon question denied review Judge BOURQUIN, (concurring). District of essential to facts of the existence However, I concur in the result. as in court jurisdiction of the ercise orders, review of the commission’s it is as through it action claims whose process upon to law vital due of that deprived property. to have been judgment independent exercised evidence claims, Public Utilities This, plaintiff jurisdiction respect as commission’s section, That fact does. how Act, 67, in § Supreme to its and the state Court as interpreted broadly ever, the state statute withhold from construes Court, so as to afford Supreme California courts to exercise inde- state question of these essential upon a review (Traber judgment instances pendent in both of v. Railroad Commission facts. Traber of of the State Cali- 304, 307, v. Railroad Commission California, 183 Cal. of the State 366), 191 P. it is clear fornia, 183 Cal. 368, it “Notwithstand is said: P. 191 in the state that so far as review courts 67 that of section ing the declaration process. Ohio, See is no due matters of concerned there of determination commission’s 253 U. Borough, S. v. Ben Avon review, etc., be held Co. subject to fact L. Ed. 527, 64 908. 289, 40 Ct. question S. its determination that plaintiff, of existing proceeding are suffi But instead facts not the whether scope courts, into this court, of state comes federal bring ease within cient plenary equity powers far are review, so as the un- must be powers bearing upon of law affected the restrictions the state stat- they present Reagan L. Co., that v. Farmers & T. provision the ute. 154 and that the subject, that 14 S. L. Ed. on facts U. Ct. 1014. the commission ‘conclusions’ independ- facts Herein can have exercise of our apply to final does are jurisdiction issues judgment ent it presents, com in- the existence etc., cluding jurisdiction Mar, Del Co. v. to act. Eshle that commission’s mission 677, 140 P. But 167 if involved. In other man, words, Cal. over the proof process of sueh facts has due the evidence is sub- herein law. This REPORTER, 2d n 640 FEDERAL SERIES 6 held Criminal law 192—Sentence one <S=I Bluefield, course to be sanctioned seems’ years years, 10 reduced to 9 reversal Ct. 43 S. etc., Com., 262 U. S. Co. v. months, hence valid. Oklahoma, etc., Co. Sentence for a on term 8 months each of 338, 64 L. Love, 252 U. 40 S. separate years counts and on another count “(total years) consecutively,” in re Ed. radical difference to run revers- despite the count, as ed to one on man- followed order Avon Ohio-Ben and the view between them years date for might commitment for 9 and months Case, supra. be, by terms, be held its own one evidence Accordingly, consideration years, years reduced reversal one for 9 months, that probability and 4 appears indicates" as it now and hence valid. that fail, hearing ease will plaintiff’s at final <@=1216(2) 5. Criminal law de —Sentence will be found fendant held to manifest intention that jurisdic- imposed were te be served and within the commission’s consecu terms tively, all were out. until served1 suf- That valid. latter’s order tion, and the Sentence for term of 8 months on each of injunction pendente require denial fices years 12 different counts on another means set- by no of rates lite. The law count, consecutively, sufficiently to run cer- Supreme from clear, appears tled prevent imprisonment tain to the terms running concurrently, though Nev- specify their citations. it did not supra, and cases, Court order in which were to be served. rule earlier it seems ertheless are un- judicial review denying state statutes <@=876i/2, 878(1) impris- 6. Criminal law —If imposed ap- onment in favor clearly to be intended abandoned has been constitutional pears, judge, and is within it is courts the, federal case of the rule enough. is- óf the merits try determine will When is on several counts in one val- order commission’s adjudge the sue, and indictment, or on several indictments con- say is but accordingly, which case, solidated into one invalid id or there is but one record judgment, imprisonment and one and if though constitutional, intend- statutes imposed thereby clearly ed appears, and is any statute, in that application, in their judge, enough. within it is n not be. them pursuant <@=I2I6(2) 7. Criminal solved —Doubt sentences; favor of concurrent doubt as to imprisonments order plainly in which consecu- tive are to be served consequence, is of no really SNOOK, until it becomes material. Warden. DONEGAN v. Any doubt as to whether sentences are con- July 26, Georgia, N. D. Court, (District D.N. current will be concurrence, solved favor of 1925.) only but if doubt is as to order in which im- prisonments plainly consecutive are to be serv- No. 81. ed, consequence it is of no until it becomes really material, partial as on judg- given upheld, arrest <@=30(3) corpus L Habeas —Sentence pardon, ment or then doubt should aggregate could punishment within liberty. in favor of counts, habeas void and not imposed on all corpus. separate imposing court, instead . Where Corpus. Habeas Petition by Edward J charging counts punishments of several for each Donegan against John W. Snook, Warden punishment imposes in ex- offenses, separate of tbe United States Penitentiary. single Petition imposed for a could cess of what im- er aggregate that could remanded. count, posed within upheld, and, all, sentence Frank A. Doughman, of Atlanta, Ga., corpus. irregular, on habeas not void petitioner. — <@=1192 on mandate Order Criminal Clint W. Hager, U. Atty., and John prisoner sentence, was where as a treated not W. Henley, U. Atty., Asst. both of At- absent. lanta, Ga., respondent. mandate, af- was after Order on except one, reversed counts as to firmed reciting of sentence affirmance as to SIBLEY, Judge. District applicant The ordering commit- defendant’s counts other ment to was convicted under all 13 counts of an term, specified not be treat- could serve absent, prisoner indictment, and sentenced, according was where a sentence ed as merely giving to reversal effect since order record answer, exhibited so far as ma- original into execution putting sentence terial, as follows: “The court thereupon otherwise. proceeded pass judgment, and sentence — <@=83 corpus In habeas Answer Habeas prisoner, Donegan, Edward to be im- traversed, be taken is to corpus, prisoned for a term of 8 months on each of true. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, counts 12, and against corpus, the war- directed habeas years on 13 (total two count 10 years), having answer, den, travers- warden’s ed, taken'as true. was to be consecutively.” appealed run He case, his

Case Details

Case Name: Market St. Ry. Co. v. Pacific Gas & Electric Co.

Court Name: District Court, N.D. California

Date Published: May 28, 1925

Citation: 6 F.2d 633

Docket Number: 1422

Court Abbreviation: N.D. Cal.