*1 Judge R. JOHN dissenting see Rehearing On Petition judges who con-

As neither court

curred entitled cause

above numbered and it is should be

hereby, denied. Judge, dis- Petitioner, COMPANY,

The TEXAS COMMISSION,

FEDERAL POWER Respondent.

No. 15470. Appeals

United States Court of Fifth Circuit.

June 1956. Aug. 21, Denied 1956. Wilson,

John J. Washington, C.,D. Lake, Richard La., S. Orleans, New Whiteford, Hart, Carmody Wilson, & Washington, (Edward D. C. M. Free- man, Schlicher, City, Paul F. New York Hill, Jr., B. Washington, C., Howell D. counsel), petitioner. Gatchell, W. Willard Gen. Counsel for Federal Power McAllister, Lambert Counsel, Asst. Gen. Wash- ington, C., Miller, D. Edwin M. Wash- C., ington, respondent. D. *2 814 respecting rehearing applications BORAH,RIVES, for and Before by including 174-A, one filed Judges. Order petitioner herein. BORAH, Judge. Septem- meantime, between and petitioner 1, 1954, 29 companion to four ber and December case This a under today the Commission in Numbers had filed with cases we have decided among protest 15,320 Magnolia Fed- rate schedules Petroleum numerous — 15,321 Commission, contracts were thirteen eral Power —Ohio gas Commission, “surplus” residue volved the sale v. Federal Power Oil Co. plant. tail-gate processing 15,352 Superior v. Federal Oil Co. of a — filing pe- Simultaneously 15,354 Commission, and with each

Power and —West applied F.2d Commis- 236 to the Commission. titioner had also Federal Power Magnolia pe- public conven- 785. Here as in the sion for certificates necessity contracts. jurisdiction this ience and titioner invokes respect Nat- of the thirteen Court under Section With contracts, to three 28, seq., October Act, 717 15 et the Commission U.S.C.A. §§ 26, 1955, 717r(b), cer- issued the Adminis- and Section 10 of and public Act, neces- and 5 U.S.C.A. tificates convenience § trative Procedure gas covering sity Federal Power of natural review of three sales and seeks a by petitioner determined made and Commission Orders natural-gas company grounds petitioner a and the The basic contentions setting aside, meaning vacating, and within the of the Act and asserted for together by petitioner, nullifying with are in essence the sales these urged by petitioners subject whatever to those facilities identical necessary supra.1 cases, companion diction Commission of the in the four subject However, addition, therefor, requirements raises this case to in (c) (e) presented question 7 a not of subsections and of Section further per- Act, Magnolia case, Natural 15 U.S.C.A. § a review of of the Gas 717f(c, e). necessary properly dis- to tinent facts is pose of issue. peti- Subsequent of this to among stipulated it for review was tion Magnolia Co. v. producers who filed with the record in numerous application for Federal Power rehear- Commission an and, 174-A like other be considered as of Order granted case, rehearing, it in applicants for the instant certification, full before the Commis- the Commission oral opportunity application petitioner’s to for re- afforded an also filed hearing sion and was Thereafter, applica- support 174-A. of its of Order in submit briefs Following briefs motion certification of tion. the submission cases, argument, in the other to include in oral Septem- proceeding afore- order issued the record this Commission 24, 1954, applications Order 174-A in thirteen amended mentioned ber here, respect to Jan- immaterial 1955, granting uary 26, compliance certificates of time for extended the necessity. public convenience and from October to Decem- the order with no to motion the took further action answer addressed ber but urged applications re- Commission 17, that such additional time hearing. Thereafter, any applications and orders were in on December not way 174- related to be issued Order proceeding and that Or- B in which it amended and restated reviewed covered addition denied all documents der 15,320. No. v. Federal

1. See footnote Petroleum Co. any petitioner or it cer- termine the status of supplemental certificate independent producer, in our entire other constituted tified to the petitioner’s status the view whether or not proceedings before adjudicated proceed- Orders has been issued Commission in which *3 by- ings re- of issue is immaterial to the 174-B. order 174-A and Court, viewability granted by of Orders the was promulgating rules and to Those orders prejudice without regulations general applicability, objection urge docu- its renew or hearing under Section of which are nonreviewable upon the ments 19(b) they merits, of themselves nei- Com- because on the case compel vigorously its ther determine nor com- status renewed mission has objections mandatory pliance orders of order re- with other and insists that quiring doc- are not transformed of these simply granted. improvidently into reviewable orders because uments separate ad- orders the Commission has plain the doc think it that We being judicated petitioner’s status. This us would have which uments so, we clear that the any part of do not constitute consider Commission certified transcript to the Court complained entered of were certificate constituted en- provided of the Nat Section proceedings tire record of the issue, here at Instead, they constitute Act. and that we should strike entirely different of the record record the documents contained in the proceedings separate before and Commission, additional record which was certified to petition proceedings in obedience to an order that the Court concededly review in does not seek to er entered, improvidently and it is so despite Yet, the instant case. ordered. challenge petitioner does not fact light said, just what we have lawfulness here the by reason of fact that the re- orders maining present in this case an issues it has that because nevertheless claims legal identity principles with those proceedings sub held to be been Magnolia case, supra, we volved in the 174-B, ject to Orders petition hold for review here- right gives petitioner seek a in must be dismissed for lack of to whether the determination diction. valid, reason themselves Dismissed. containing thereof the additional adjudications properly be is the status Judge, JOHN R. dis- support of con Court. fore this dissenting opinion see 236 argues pres “the tention nearly all fours with so ent case is Corporation Telephone Rochester On Petition for States, 307 U.S. 59 S. United it should 83 L.Ed. Ct. pres Court’s decision in the control judges who As neither con- proceeding.” We think that ent curred in inapposite for all- is Rochester numbered entitled is the above cause reason that the order there sufficient of ing that the challenged was a determination sta be tus, no such in the case at bar whereas Here, presented. as we stated issue is hereby, denied. length Judge, Federal not de- to be reviewed did