Mobile Gas Service Corp. v. Federal Power Commission, United Gas Pipe Line Co., Intervener

gas Vose, Thomas, industrially W. and William was Gerard not to be resold Karatz, brief), Natchitoches, La., per for (1,000 less than MCF cubic Corp. feet) petitioner, for Mobile Gas Service without United’s consent. This agreement as amended con Grove, Washington, William J. D. C. tract was to continue in effect until 1962. (Willard Counsel, Gatchell, W. Gen. Both contracts were filed with the Com DaPra, Washington, C., L. D. Louis mission and became United’s Gas Rate Washington, Kaplan, C., Louis D. C. n Supplement Schedule No. 20 and to that Rogers Heights, Md., S. Po- brief), Sherman Schedule No. 7. land, Washington, C.,D. on the respondent, Federal Power Commis- agreed In 1946 to United with Mobile sion. arrangement proposed Mobile between (Wil- Fletcher, Houston, Thomas Tex. whereby Company and Ideal Cement George Crain, Counsel, bert 0. Gen. D. supplied latter could with indus- Fiser, Elkins, Shreveport, La., Vinson, gas per trial needs Mobile Searls, Fleming, Weems & William T. period years provided MCF for a of ten Jr., Houston, Tex., Wilkinson, Lewis & 100,- total deliveries remained between Lewis, Wilkinson and C. Huffman 400,000 per 001 and In ac- MCF month. Shreveport, La., brief), inter- cordance with this United consented to vener, Pipe United Gas Line Co. accept percentage rate of Mobile’s though to sales Ideal this would be less McLAUGHLIN, Before STALEY and per than the minimum of MCF. HASTIE, Judges. Circuit agreed United also at that time re- McLAUGHLIN, Judge. Circuit gas price duce the of industrial Mo- proceeding In this to review an order gross bile from of the latter’s re- 90% of the Federal Power Commission the up 41,667 sale revenues to MCF 80% basic is whether the Commis- billing per month and in excess 90% holding sion is correct in agreements thereof. Those were filed gas Natural pany Act1 Gas a natural com- Supplements with the Commission as No. wipe can in effect out a filed rate 9 and No. 10 to United’s Rate Schedule simply by filing contract an increased No. then consummated its 20. Mobile Substantially rate schedule. is proposed contract with Ideal Cement what the Commission considers have gas supply Company to to the latter for happened petitioner’s years per ten MCF. The Alabama intervener. approved Public Commission Service only Corporation, Mobile Gas Service the that contract. Not United but the petitioner, recognized is an Alabama distributor of gas. July, sup It receives its late as entire when the Commission ply of intervener, that fuel from the allowed United to substitute its filed Pipe Company, United per Gas Line tariff a rate of a Delaware flat inMCF 10.70 poration.2 By cor percentage place a 1936 contract rate Mobile had predecessor paying. Mobile, between it and United’s As United and been advised agreement entered in 1941 into with this substitution was made under the gas United itself certain of Mobile’s for Commission directive to convert from industrially resale supplied by percentage was to be to fixed sum and was almost gross United for of Mobile’s identical resale amount the Mobile 90% provided actually figured.3 percentage revenues. The contract 821-833, unreported (on appeal, Cir.), 1. 52 Stat. 15 U.S.C.A. 5th §§ Unit- 717- agreed just arrange- 717-w. ed had such an ment as Mobile made with Ideal —that 2. Jurisdiction is obtained reason of furnishing of natural at a re- 19(b) of tbe Natural Gas Act. period duced rate. There the was six- 717r(b). Stat. U.S.C.A. § years. teen Tyler Gas Service Co. v. United Gas Pipe Co., D.C.Tex., Line Dec. separate with that filed be made a cause. That United June On granted prayer proposed increased as was later United’s per petition proceed- including MCF rates, intervene the new a rate 14.5$ ing. On for Mobile. On December 1953 the Commis- use for industrial pleadings prayers ordered a July 10, on Commission sion the denied the the rates, hearing petition of those on lawfulness and of Mobile’s dismissed it. hearing pending the suspended February 4, 1954, them On Commission Mobile exception new of the rehearing with the peti- refused to This Mobile. hearing con- rate, to be that ordered and tion review of the Commission’s de- proceeding in- with earlier an solidated cision followed. vestigating rates. The of United’s all point main Mobile’s is that its United being for industrial new for Mobile rate respect with contract to Ideal is a valid suspension subject under to use was agreement which cannot be set aside 4(e) As a result it Act. of the filing unilateral action of United’s an in- Mobile, July 25, operative became recog- frankly rate schedule. It creased attempted 16, 1953, July to intervene paramount nizes the Commission’s au- proceeding. On Au- in the consolidated thority prop- and concedes if that after a gust petition filed a it proceeding er the Commission found the setting up above situa- Commission against public rate to be in- asking the Commission to tion and modify terest it it could or set it aside July Unit- so that amend its order entirely. filing so far it affected the ed’s new rejected would be Ideal contract The Commission contends that where permitted not be to take gas company rate would 14.5$ files a rate sched- requested In it 4(d) the alternative effect. ule under of the Act that is rate hearing charged the lawfulness suspended initially to unless if finally and asked that Mobile was disapproved that rate the Commission obligated pay investigation to United the increased hearing; after rates rate, to be directed hold those being United subject for industrial use not to payments subject suspension to refund to Mobile when filed become effective ultimately thirty days the event new finally pass- thereafter until upon by determined to be unlawful. At that ed the Commission. The latter stage no action had been taken on Mo- that even insists where as here the rate application bile’s admittedly intervene and the preexisting conflicts with an governing July new rate had been given since filed contract the distributor is consequence 25th. As a contract, Mobile amend- chance to defend its on which urged petition ed approved its the Commission has commitments, made it be- ap- In that unchanged suit there was a ap- denial of an ableness of an existent plication injunction prevent proved prior for an acceptance to the moving from United before Commis- for consideration of the new rate and permission prior sion for to collect its new to the determination of the rea- rate for domestic use until the rea- sonableness of that new rate was not finally sonableness of that rate had been before the court. emphasized determined the Commission. There It should be also that Tyler was a contract but involved it al- had fact concerned a rate ready been modified in what seems sale domestic use of itself adversary proceeding. apart have been an Ac- sets that action from the issue of cording opinion appeal. Tyler to the the district this under Section 4 “ * * * judge plaintiffs (e) concede the Commission could and did sus- hearing may pend the Commission on final the effective dates of the increased figure fix the rates at which it period deter- rates for five months after which reasonable, any subsequent mines which be at it could order collections complete disregard subject variance with to be held to refund in the event * * rates, of the contract ultimately The all the new rates were found to be important us of before whether unlawful. hearing should be a there on the reason- pur- to, except days’ thirty practical to the notice is to alt fore that contract poses ' public.” (Em- abrogated. and to the according phasis supplied.) means, This ordi- undisputed It that under 4(q) to the since nary 4(e) proceeding Com- suspend power it does not have the tq reference mission has instituted gas rate, industrial fun- use United can involved, dis- the .new rate schedule damentally the Mobile contract cancel positive question before the Commission despite as of Mobile the fact that now just are the increased whether Ideal, is bound for duration sub- plain 4(e). and reasonable. makes only ject passing later says: when finally upon And the rate. in the Com- “ * *v any hearing involv- At thought place mission can with- this take charge sought ing in- to be a ráte or any statutory to or an out opportunity notice Mobile proof creased, to show the burden re- for Mobile be heard charge is rate or that the increased just garding practical rate. contract The upon reasonable shall and living up Mobile result this in is natural-gas company, and the the supplying to its Ideal contract with is give hear- the shall Commission ing company per to that for 120 questions decision such and may and MCF well be forced to continue questions preference over other expiration to do so until the of its con- the pending decide it and before tract pay in Meanwhile must Mobile possible.” speedily as same as per United MCF for the same 14.50 pending though hear- if in words the it delivers Ideal its con- In other ques- ing new filed that its never can show tract United has been United by that ends is reasonable the Power rate for Mobile tioned Federal Commission any against way No the new rate stands. in and or construed to be the matter given accept- public to the will be interest. consideration contract, the circumstances ed rely Commission and The intervener long into, term it was entered which large upon Dry extent Union Goods by the Commis- sanctioned commitments Georgia Corp., 1919, v. Co. P. S. U.S. by it the rate fixed against is and whether sion 117, 309, and 39 S.Ct. public in- and unreasonable Realty City Pow- Midland Co. Kansas petitioner facts. What under the terest Light Co., & er endeavoring is contract to do have its is 345, 81 L.Ed. 540. The first case S.Ct. prior upon first instance passed in the by holding quoted the Commission as filing of United’s new for authorization page page 248 U.S. at in of whether the consideration rate rights private “That 118: contract must currently reasonable. rate is yield public welfare, to the where the 4(d) appropriately de- maintains that latter declared and The Commission conflict, upholds its That fined and the two often stand. sec- has been of the Act4 by primarily principle as court.” provides, far we are decided The tion concerned, change is of sound law “no shall be made course and is ex- stated any by petitioner. natural-gas company any pressly by in such uncontroverted In * ** relating litigation there had contract Union been a or there- changes change plainly 4(d) or Act follows: to be made reads as 4. Section in or- in the schedule or schedules then force otherwise “Unless any change by changes change ders, and the time or shall made when no rate, go company natural-gas into in will effect. shown, changes service, good classification, cause allow charge, or requiring thirty relating any rule, regulation, or take effect without days’ provided days’ except thirty thereto, notice herein notice changes public. specifying the so to be order and to the Commission to the they given by filing made and the when shall take time shall be notice Such they keeping open manner effect the Commission public stating published.” inspection shall be filed and new schedules Georgia opinion hearing Supreme before the Commission Kansas Independent Telephone of Kaul v. of the reasonableness American Co., 1915, rates. The Kan. P. unlawfully they where it is were discrim- stated found that that: “ * * * Here, seen, inatory. Mobile as we have passage of the act opportunity con- to defend the had automatically did not overthrow coming prior new rate tract rate contracts, nor set aside schedules of being. into agreed upon. rates which had been Neither did the fact that the defend- support Midland does lend some to the published ant and filed a schedule of position of the Commission and the in public rates with the utilities com- But filed tervener. there the rates abrogate mission the contract. utility opposed were were any event, previously agreed Utility permitted the Missouri Com upon patrons between utilities and hearing.5 without Far im mission more will continue in force until the com- mission has found them to be unrea- portant than that the decision is based upon interpretation a state court of a prescribed sonable and has other question litigated state statute. The and rates.” upon passed was whether a Missouri as construed the Missouri statute Su procedure as to rates The Kansas preme Court violated the federal consti great similarity to the Natural Gas bears problem pre sort tution. That of 20 of formula. Under Section Act in this action. sented utility public public statute9 a state’s utility higher rates. Section file involving a state Another case court empowers the Commission to of the law explanation of a state law is Wichita R. hearing have rates which after aside set Utility Light v. Public Co. Commis & unreasonable. It is un found been 48, sion, 43 S.Ct. parallel provision in the Natural der the 124.6 That came into the federal L.Ed. 5(a), petitioner Act, Gas through diversity citizenship of courts should contends the Commission have goes strong help affords as far as passing upon functioned tempt United’s at petitioner. In it the Kansas Commis higher gas a rate to obtain finding any without unreasona sion for the industrial user to Mobile sold duly despite a filed contract bleness 5(a) reads: Ideal. Section power, of electric the sale authorized surcharge. appeared Commission, railroad had The a “Whenever proceeding hearing upon and had had its own in the motion a any objected. complaint State, matter upon was removed to mu- or commission, nicipality, District United States Court which or State distributing company, execution of the restrained Commission’s shall find that Eighth charge, any rate, Circuit reversed.8 or order.7 classification upheld Supreme observed, demanded, charged, The court, quoting district or col- approval natural-gas by any company from the lected very real distinction exists 5. A between Steam & 6. See also Attleboro Electric position realty company Narragansett Lighting Electric Oo. Co., present peti- D.C.R.I.1924, that of the Midland and 295 E. constru- Hearings ing were held on tioner. similar Island a similar Rhode statute. and the latter found unreason- contracts judgment motion 7. Wichita’s utility prior company’s to the able suit pleadings granted. There was no being disposed against Midland of and opinion. reported appeared in had not Midland those hear- ings. other words Midland made no Cir., 268 E. 37. 8. 8 attempt directly attack new rate Utility Kansas, the Commission but before contented it- Law of 9. Public Session raising defense in a self collateral Laws of c. 238. brought by -proceeding utility com- pany. any transporta- Cir., right 64 F.2d And the

in connection with subject finding gas, of natural Commission to make a tion or sale jurisdiction depends upon the Commis- unreasonableness to the regulation, sion, any rule, of the fact. In the ab- or that existence affecting practice, such sence of or contract substantial evidence rate, charges charge, un- show or classification that the rates and unduly just, unreasonable, unreasonable, discrim- existence ing find- are inatory, preferential, the Com- or to that effect constitutes the ar- just bitrary power mission shall determine the exercise of admin- charge, rate, classifica- reasonable tion, istrative fiat and cannot In- stand. regulation, practice, rule, terstate Commerce Commission v. Co., 88,. observed thereafter Louisville & N. R. 227 U.S. force, shall fix the same and in by 431.” Provided, however, That order: suggests the- The Commission pow- shall have applicable is not Colorado decision be any any order increase in er to proceedings were under cause Sec currently effective contained in the tion 5 but we fail to note contradic com- schedule such natural court’s statement that filed1 tion pany on file with the charges only rates and can be unless such increase is in accordance finding express of unrea aside set filed with a new schedule specifically which in turn sonableness gas company; but the Com- that, very opinion (Wichita) follows may order decrease where mission pe turns Commission asserts on a existing unjust, unduly are Actually Kansas law. the Com culiar discriminatory, preferential, other- again insists that it mission time and unlawful, not wise or are the lowest Congress in the- does not claim that the rates.” reasonable Act intended to set aside- Natural Gas 5(a) Tenth was before the Cir- flatly- completely. contracts It states in Interstate Co. v. cuit Colorado Gas thought.. no such that the Act shows Commission, 1944, 142 Federal Power F. theory of “scheme of Nevertheless regulation” the 954, 1945, 581, 943, 324 affirmed U.S. 2d argues permit that it it be 829, L.Ed. 1206. In that case 65 89 S.Ct. 4(d) so that ted to construe Section City County complaint of the of reality consequence is obtained. In. that Wyoming and the Denver State Niagara Corp.,. F.P.C. v. Mohawk Power existing held that rates and 487, 239, 493, S.Ct. 347 U.S. 74 Su unreasonable. The were contracts abundantly preme made it Court clear finding companies claimed that the was authority “requires such clear au that founded on substantial evidence. not thorization”, which absent from the- Niagara Act. Mo Natural Gas The Court said: litigation query was whether hawk “ * * * passage of the Act 1920, Power Act of the Federal Water 16- automatically overthrow did seq., 791a et had abolished: U.S.C.A. § compa- into which these contracts existing rights, proprietary private un previously had entered. Nei- nies naviga law, state use waters of a der ipso did it facto set aside the ther power purposes. stream ble Su charges upon schedules interpreting preme statute- agreed. they rates and only had Such said, page 251, at 347 U.S. 74 S.Ct. charges be modified could page 494: finding express of unreasonable- an “ * * * nothing Light find Co. We R. & v. ness. Wichita justifying Federal Water Power Act 260 Utilities Public interpretation. it, 51, 124; 48, an Neither L.Ed. 67 S.Ct. U.S. it, Dry issued the license ex- nor Hinkel Goods Co. v. Allen W. any existing pro- Co., pressly abolishes Industrial Gas Wiehison rights prietary to use waters business to Mobile and to United * * * Niagara long range price On the River. concession contrary, plan Act is one made in order to obtain it. Arkansas Cf. regulation of reasonable of the use Natural Gas Co. v. Arkansas Railroad navigable waters, coupled Commission, 1923, 261 U.S. 43 S.Ct. encouragement development 705; of their 67 L.Ed. Wichita Railroad & Light power projects by private par- Co. v. Court of Industrial Rela- tions, 1923, ties.” 113 Kan. 797. P. And the fact that the Commission can here, So does not Natural Gas Act change the contract does not render it expressly permit existing rights mutuality. void for lack of Southern to be abolished a mere unilateral City Palatka, 1925, Utilities Co. plan of new rates. The Natural 930; U.S. 45 S.Ct. 69 L.Ed. Gas Act is likewise one of reasonable Dry Hinkel Goods In- Co. v. Wichison regulation, as evidenced the fact that Co., Cir., 1933, dustrial Gas 64 F.2d change the Commission itself cannot existing contract rate under Section 5 finding (a) without first such rates pertinent With reference to the are unreasonable. legislative history regarding such con us, tract as par before all three of the Beyond question the Commis quote colloquy ties between Con action in sion’s this instance would re gressman Booth, appear Halleck and Mr. impairment petition sult further ing for the Illinois Public Service Com rights. er’s common law As the Su immediately mission on the bill which preme Court stated in Texas & Pacific preceded the Natural Gas Act. The ac Ry. Co., 1907, v. Abilene Cotton Oil report of curate this reads: 426, 437, cited case intervener but in course, “Mr. Halleck. Of terpreting Interstate your Commerce Act: idea that if this bill should pass given “ the Commission be * * * a statute will not be authority contemplated the bill, in this taking away -construed as a com- super- that the contract could be right existing mon-law at the date seded or invalidated insofar as at- enactment, of its unless that result tempt charges to fix the rates of imperatively required; is say, that is to concerned ? pre- unless be found that the existing right repugnant is so to the certainly “Mr. Booth. That would n statute that the survival of such my position certainly be and we right deprive would in effect would ask the Federal Power Com- subsequent efficacy; statute of its promptly mission to consider the words, provisions in other render its question as to whether or not the nugatory.” Pipeline Natural Gas Co. of Ameri- earning upon ca is an unfair return Co., 1879, See Shaw v. Railroad property.” the fair value of its 892; 25 L.Ed. U.S. American (Emphasis supplied.) Kittleson, Telegraph District Co. v. Cir„ 953; F.2d Suther- Hearings, House Committee on Inter- land, Statutory Statutes and Construc- Foreign Commerce, Cong. state and 75th (3rd 1943) tion ed. 164-182. Sess., page H.R. 1st at Nor is a contract auto reasonable The inference from the matically merely petitioner’s nullified because the above is identical with the- namely, ory, return is low. In this instance there that the Commission has power private seems no doubt but that the Ideal Ce eliminate a con- represented important ; ment account new tract not that the latter is automatical- virtually ly opposition from destroyed by action no to the bill the unilateral party source.13 a thereto.10 debates of no in the There is mention its brief The itself Commission Congress intended Act was ever that the says: contracting party permit to elimi a reports “The Trade of the Federal giv existing simply nate its contracts natural-gas in- Commission on days’ ing thirty public and to the notice dustry abound with references the Act was to the Instead Commission. concerning data the contracts provisions “usual stated * contain the long companies * * for of them most regulatory we find all such as at of the terms. It was the time by Congress”,11 and enacted measures passage Act, now, and is of the according report, there to the Committee practice for common and usual “nothing provisions.”12 in its was novel gas companies to contract for all noted that there was It also be should 10. The intervener cites we find for for rules in call merce Act contained out Act to the Interstate done.” course Natural Gas rates; against published, The lack Act was specific giving merce Act on the omission make the same C.A. ed cluding also gress riods; agreement in tracts the 82, states that that similar Co. United 28 “Mr. Lea: “There Armour has been followed fix S.Ct. by attempting instance, usual Cong.Rec. made open such contracts should Congress § certain maximum stated stability that the for outlined 1 et in rate after carriage discriminations As replace every are the for the consideration treatment with one and clear all affecting to Congress. provisions the Elkins Act amendment of contracts we amendment was Act. recognition of seq. * regulatory all, no that administrative intended the scheme States, 1908, the Court. the Interstate the rate power provide for to Commerce that the to rates contracts * * have seen this by usual or minimum rates or a page of the Interstate Com- provisions. That case said, go hearing; As the all just (1937): freight. injustice are those such into of the Commission This bill provisions. 485: “It shippers other Armour stipulated measures Interstate Supreme and reasonable for limited being detail, Act, 49 provision opinion itself 209 U.S. private for Commenting in the later preferences adopted to provisions; recognized, device, in- rate for Commerce would be contains, shippers. filed be of Con- at Packing possible type what known enact- of the With- Com- court given point page U.S. con- rule and pe- I 13. 12. the distribution particular bill covers the the it. lic fact, I 3. connection accounts, including the commissions count; following Commission the anything P.P.C., 829, the ings bill. to conform to those principal and, mission, timony, any opposition taken to courts. power of the panies as between consumers or the kept tices. plaints has review H.Rep.No.709, “Mr. “The bill makes “Those are what ^[******] know, bodies, See Colorado Interstate Gas Co. v. House It is production of Cong.Rec. the usual requirement my open I where deemed consuming public. rule, Mapes: under the companies do and of are conclusive if attention has provisions there is to do with or have supported by standard for attention to the as far as not know of supported or that the provides 1206. 324 orders provisions public anyone Mr. and sale requiring 75th questions that power to it, themselves.” regulation no testimony States the bill.” of lines; (1937): Chairman, might findings provision even on the inspection; of the Cong., I unduly high. opposition not else who the schedules accounting prac- know, depreciation upon substantial As a of localities; petition, been called be called the hearings public utility 1st reference of the Com- control suspend of this member of accounting, by giving given any who have courts in as far as for com- matter of Sess., opposes may all for rehear- to part court com- pub- this tes- gas the the ac- for bill be be p. of to of provisions transportation supersed- of natural sales thereof are gas. companies which sold Those by appli- ed inor with other conflict exceptions.” otherwise were provisions cable of the rate sched- general being ules and condi- This so one would think that terms and on a there would be least some debate tariff, such con- tions of the until provision provided the lawful which expires by pro- presently tract type of unilateral of that cancellation replaced vided an ex- terms or is agreement Congress had that in if agreement ecuted service in a form mind.14 Provided, contained in the tariff: natural-gas however, com- That the much of The Commission also makes filing pany, of pro- concurrent with the provision 4(e) in Section tariff, submit, shall insertion suspending hibits the Commission from contract, in front of each a for re- the sale of natural identifying provisions statement purpose sale for industrial The use. superseded thereof provision, however, which are not as stated applicable Congressman inor conflict with other introduced the amend- who provisions ment, suspension rate schedules prevent in cas- was “to general terms and conditions of the where there are short es industrial use * * tariff and which are remain in ef- (Emphasis term contracts Provided, further, however, fect: supplied.) implication clear is that The agreements That Congress intended purpose temporarily saw no effect change agreed or amendment in such con- protecting purchasers who had may only by tract be made the exe- contractually to an increase rates. agree- cution service implication equally The clear that Con- form of (Em- ment gress contained in the present did not visualize the cir- tariff.” phasis supplied part.) contracting cumstances where one parties attempting under the cover of filing United’s on June 1953 did the Act to avoid its contractual duties. change” attempt “to effect a in an unex- order under Commission’s review pired contract without “the execution of refers to Part 154 of the Commission’s agreement forma of service contained Regulations Reg- under the Act. Those in the tariff.” This case is therefore dis- give ulations no assistance to the Com- tinguishable Mississippi from River Fuel interpretation mission’s of Section 4. Corp. Comm., Cir., v. Federal Power very Regulations section of the un- 1953, 202 F.2d where we held that der which United filed its conversion filing requirements all the had been com- May, schedules16 in 1952 reads as fol- plied appar- with and where there was lows: ently existing filed contract. More- over, purposes “Section 154.85 Status Con- we assumed for the tracts as rate schedules and re- that case “that the Commission has the filed contract, power, implied stated. authority Each which is now from its schedule, regulations, reject filed as an effective rate make rules and proposed be continued in effect and shall which does not conform regulations.” be considered as an executed service rules Missis- agreement sippi Corp. to the extent that Fuel the River v. Federal Power points Cong.Rec. (1937). 14. The Commission to certain evi- 15. 81 of the Commission’s dence predecessor solicitor on a demonstrating bill as the 16. There is contention that the instant filing procedure changed by intent to make control- contract was the conversion irrespective ling replacing percentage by of the contractual sit- order the rate a nothing in uation. There is that testi- fixed rate. The latter as has been men- mony fairly substantially from which it can be con- tioned was the same as the percentage inferentially that kind of cluded the contract before old rate and be- contemplation unchanged part was within us the of the the came of contract. witness his examiners. 1919, 134, 237, 63 page L.Ed. supra, 901. Comm., S.Ct. 202 F.2d 517. 154.24.17 See 18 C.F.R. Section language parts order the Those of the Commission’s of In view the above petition Regulations which of dismissed Mobile’s Commission’s own suggestion request which in the denied Mobile’s that complete of absence July 10, legislative history order to re- that amended be statute or in the filing ject in so authorize Revised Sheets the Act was intended abrogation rights by they existing far as affected Ideal rejected request rate and which Mobile’s of the substituted

means procedure, unilateral the Commission to order amend- issue an we hold that ing July Paragraph 10, rejecting D of Revised its order in not United’s erred they 1953, paragraph permitted re- far as 40 in so Nos. 39 and Sheets effect, To other- vised take re- do schedule to will be the Ideal contract. affected legis- attempt us to versed. wise would be an judicially construction since the late HASTIE, Judge (dissenting). 4(d) Circuit contended for Commis- is not warranted and the intervener sion July 10, The Commission’s order of language. statutory Ni- F.P.C. v. proper was lawful under the Any agara Corp., supra. Power Mohawk terms and scheme of the Natural Gas changes 4(d), particularly rad- of the requiring Act. This court now is urged, con- be for the nature would ical changed way which, order to be in a Congress, this not for of the sideration my view, causes Commission to ex- court. authority ceed its under the Act. Ac- cordingly, I dissent. holding un it becomes With al Mobile’s necessary consider for us to re even if the contention ternative filing accepted be schedule vised hearing separate held on subsequent filing at which time of the

the lawfulness prior contract of the reasonableness upon. passed we Nor do would that the Com contention Mobile’s

reach Sec ordered under should have mission NORTHERN NATURAL GAS COM- 4(e) monies collected tion Petitioner, PANY, Corporation, filing acceptance be held sub of such the ject specifically we are to refund. Since COMMISSION, FEDERAL POWER part holding pertinent the or that the Respondent. July 10,1953 void because the der of Nos. 14743. right accept the had no Appeals United States Court of without first of the new schedule Eighth Circuit. determining un reasonableness or Oct. existing contract reasonableness any monies, any, if collected on the erroneous order unlaw were

basis fully collected and should be returned to Baltimore O. R. Co. Mobile. & v. United States, 279 U.S. 954; Restatement, Restitution, (1937); Arkadelphia cf. Ry. Co., Louis W. Milling, Co. S. St. Rejection comply submitted for “Section 154.24 material which fails to requirements filing. The Commission with the forth submitted set part right reject 154].” material [Section reserves

Case Details

Case Name: Mobile Gas Service Corp. v. Federal Power Commission, United Gas Pipe Line Co., Intervener

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 7, 1954

Citation: 215 F.2d 883

Docket Number: 11280_1

Court Abbreviation: 3rd Cir.