Every legislative rate case presents three questions of prime
importance: reasonable value of the plant; probable effect of the
reduced rate upon future net income; deductions from gross receipts
as a fund to preserve plant from depreciation.
A legislative rate for a public service corporation is presumed
to be sufficient to produce a fair return on the plant, and the
burden of showing that it is confiscatory rests upon those
attacking it.
A public service corporation is entitled to a fair return upon
the fair value of the plant at the time of the inquiry as to
reasonableness of rates imposed,
San Diego Land & Town Co.
v. Jasper, 189 U. S. 439, but
in this case, not decided what such a rate would be on a gas and
electric plant in Nebraska.
Where a legislative rate contest involves ascertainment by
testimony of experts and auditors of valuation of plant,
capitalization, gross receipts, net earnings, depreciation, and
other elements, the proper practice is to refer the case at the
outset to a skilled master, upon whose report specific errors can
be assigned and ruled upon.
Chicago, Milwaukee & St. Paul
Railway v. Tompkins, 176 U. S. 167.
What sum should be annually deducted from gross or net receipts
of a public service corporation for depreciation and replacement
and how it should be applied are novel and grave problems, and, in
the absence of a full report as to every element involved, this
Court is not justified in passing upon them.
The operation of an ordinance establishing a rate for gas will
not be enjoined unless complainant enters into a bond to account to
consumers for all overcharges in case the ordinance is eventually
sustained.
The facts, which involve the validity of an ordinance of the
City of Lincoln, Nebraska, regulating charges for gas furnished to
consumers, are stated in the opinion.
Page 223 U. S. 356
MR. JUSTICE LURTON delivered the opinion of the Court.
This case involves the validity of an ordinance regulating the
appellant's charges for gas furnished to consumers, and forbidding
a charge in excess of one dollar per thousand feet. The bill
assailed the rate as confiscatory, and therefore a taking of
property without compensation. The ordinance rests upon legislative
power to regulate the charges of such public service companies.
Page 223 U. S. 357
The sufficiency of the price prescribed to produce a fair profit
upon the value of the property employed in the business is to be
strongly presumed. The burden of showing its confiscatory character
rests therefore upon the complaining company.
The court below, upon a final hearing, held that the appellant
had not made out its case, and dismissed the bill, with leave to
renew the litigation if, upon actual operation under the ordinance,
the returns upon its business should not prove reasonably
remunerative. The ordinance was never put in force. Within a few
days after it went into effect, this bill was filed and an
injunction
pendente lite granted which was continued in
force down to the final decree, and when this appeal was allowed,
was, by order of the court allowing it, continued pending the
appeal, under a bond conditioned to account for all overcharges if
the ordinance should be sustained.
The case was not referred to a master, as is the usual course in
such cases, although there was a great mass of conflicting evidence
relating to the value of the plant, cost of operation, and gross
and net income. Neither did the court make specific findings of
fact to which specific objection could be made. Such facts as may
be said to constitute "findings of fact" appear in the way of large
conclusions in the course of the opinion found in the record.
In this as in every other legislative rate case, there are
presented three questions of prime importance: first, the present
reasonable value of the company's plant engaged in the regulated
business, second, what will be the probable effect of the reduced
rate upon the future net income from the property engaged in
serving the public, and third, in ascertaining the probable net
income under the reduced rates prescribed, what deduction, if any,
should be made from the gross receipts as a fund to preserve the
property from future depreciation.
Page 223 U. S. 358
The valuation fixed by the court is the main point of attack.
That the company is entitled to a fair return upon the value of the
property at the time of the inquiry is the rule.
San Diego Land
& Town Co. v. Jasper, 189 U. S.
442.
The court, as one means of finding the present value of the
gas-making plant, found that the present cost of replacing it would
be $566,073.59. The items which enter into this valuation, and the
reason for reaching this result, as stated in the opinion, are
shown by the paragraphs here set out:
"In determining for what amount the plant could be
reconstructed, I have accepted in the main the testimony of
complainant's witnesses as being the most satisfactory, and I find
that the plant could be reconstructed for the following sums:"
Coal gas apparatus . . . . . . . . . . $ 80,605.00
Water gas apparatus. . . . . . . . . . 29,278.00
Mains in dirt streets. . . . . . . . . 90,578.00
Mains in paved streets . . . . . . . . 130,027.00
Gas services, etc. . . . . . . . . . . 107,106.82
Gas meters in use. . . . . . . . . . . 36,282.90
Meter connections. . . . . . . . . . . 6,304.00
Piping for gas ranges. . . . . . . . . 16,500.00
-----------
$496,681.72
Engineering expenses (2 1/2%). . . . . 12,417.04
Real estate. . . . . . . . . . . . . . 4,000.00
Present value of buildings . . . . . . 24,643.00
Contingent expenses in construction. . 25,000.00
Cost of organizing company . . . . . . 3,000.00
-----------
$565,741.76
"While the evidence as to the depreciation is somewhat vague and
indefinite, I think, upon the items aggregating
Page 223 U. S. 359
said $496,681.72, there should be deducted for depreciation 10
percent, amounting to the sum of $49,688.17, making the total
present valuation of the plant $516,073.59; but it is apparent
that, for the successful and economical operation of the plant, a
certain amount of working capital is required. This amount I find
to be $50,000, making the total value of complainant's investment,
upon which it is entitled to a reasonable return, $566,073.59."
"While it is true that the testimony shows that the complainant
has not such working capital, but has purchased upon credit the
supplies necessary to operate, yet I think that, in determining
what is a reasonable compensation, a working capital should be
considered."
But the appellant does not accept the valuation thus fixed. It
contends that there should be added to that the following:
Steam boiler for water gas . . . . . . $ 2,225.00
Underestimate of present value
of buildings . . . . . . . . . . . . 10,000.00
Underestimate of working capita. . . . 10,000.00
Underestimate of meter connections . . 6,102.00
Underestimate contingent expenses
of construction. . . . . . . . . . . 37,500.00
Interest on idle capital during
construction . . . . . . . . . . . . 40,000.00
Promotion of business, or going
value and franchise, as elements
in replacing value . . . . . . . . . 100,000.00
------------
205,852.00
Add court's valuation. . . . . . . . . 566,073.59
------------
$771,825.59
The appellee, on the other hand, in support of the general
Page 223 U. S. 360
decree dismissing the bill, joins issue upon each of these
items, and insists that, if the court shall see fit to go into the
evidence, it will find that the plant has been greatly overvalued.
It particularly objects to the large item of $107,000 for gas
service, and to the item of $50,000 added to the value of the
property as "working capital," and says that the incorrectness of
this is seen in the admission that the appellant has in fact no
such working capital engaged in the business. Appellee further
contends that the "expense of operation" in 1907 includes
reconstruction or replacement work, and that such items enlarge the
operating expenses of that year unduly, and correspondingly reduce
the net income. If the expense of operating the plant for that year
is to be accepted as the standard by which the operating expenses
of future years are to be estimated, the objection is serious if
the facts are as claimed.
The appellant further claims that the sum of $8,000 deducted
from the net income, as a permanent protection against future
depreciation in the value of the plant, is too small, and should be
much larger. Upon this there was conflicting expert testimony. Upon
all of these questions of valuation and of operating expense there
is much evidence, and much of it conflicting. The findings of the
court, as before stated, are of too comprehensive a character to be
of much help in dealing with the details which are embraced.
But it is urged that even upon the valuation fixed by the court,
the estimated future net income will be little over five percent,
and, in consideration of the character of the property and the high
average interest rate prevailing in Nebraska, this is not a
reasonable or fair return, and demonstrates the confiscatory
character of the ordinance. But if the $8,000 first deducted from
the receipts, and laid aside as a permanent fund to meet future
depreciation be taken into account, the estimated future
Page 223 U. S. 361
net income with the rate in force will exceed six percent
Nor did the circuit court hold that a net profit of five and
two-tenths percent would be a fair and reasonable return upon the
value of the property employed. What the court found was, in
substance, that at least an income of that amount was certain,
aside from the amount reserved for a permanent preservation fund.
What the court said was this:
"While complainant, I think, is entitled to at least six percent
upon the money invested, it does not appear that the reduced rate
would not yield that sum. It is quite probable that the reduced
rate would considerably increase the consumption of gas, and thus
increase the complainant's net profits."
"The record shows that, in June, 1904, complainant voluntarily
reduced its rates from approximately $1.50 per thousand to $1.20,
and the amount of gas consumed, and net profits resulting,
considerably increased. The inquiry in cases of this character is
not alone what has complainant theretofore earned, but it is what
will be the effect of the ordinance reducing the rate upon the
future net earnings of the company, and it devolves upon
complainant to show not that the past rates have not produced a
reasonable return, but that the rate prescribed by the ordinance
will not in the future produce a reasonable return."
This case is full of difficult and grave questions. Such
conclusions as to facts as are found in the court's opinion are not
helpful when, as here, errors are assigned which open up
substantially the whole case. The cause should have gone at the
beginning to a skilled master, upon whose report specific errors
could have been assigned and a ruling from the court obtained.
In the case of
Chicago, M. &c. Ry. Co. v. Tompkins,
176 U. S. 167,
176 U. S.
179,, this Court was called upon to review
Page 223 U. S. 362
a decree upholding a state-made railroad rate which had been
unsuccessfully attacked as confiscatory. In that case, as in this,
the matter had not been referred to a master, but had been decided
by the circuit court upon the whole of the evidence. It came to
this Court upon such a variety of questions of fact and law as to
practically open up the whole case. Impressed with the seriousness
of the questions involved, this Court remanded the case for a
reference and report by a skilled master. As to this practice, this
Court said:
"The question then arises, what disposition of the case shall
this Court make? Ought we to examine the testimony, find the facts,
and from those facts deduce the proper conclusion?"
"It would doubtless be within the competency of this Court on an
appeal in equity to do this, but we are constrained to think that
it would not (particularly in a case like the present) be the
proper course to pursue. This is an appellate court, and parties
have a right to a determination of the facts in the first instance
by the trial court. Doubtless, if such determination is challenged
on appeal, it becomes our duty to examine the testimony and see if
it sustains the findings; but if the facts found are not challenged
by either party, then this Court need not go beyond its ordinary
appellate duty of considering whether such facts justified the
decree. We think this is one of those cases in which it is
especially important that there should be a full and clear finding
of the facts by the trial court. The questions are difficult, the
interests are vast, and therefore the aid of the trial court should
be had. . . . We are all of opinion that a better practice is to
refer the testimony to some competent master, to make all needed
computations, and find fully the facts. It is hardly necessary to
observe that, in view of the difficulties and importance of such a
case, it is imperative that the most competent and reliable master,
general
Page 223 U. S. 363
or special, should be selected, for it is not a light matter to
interfere with the legislation of a state in respect to the
prescribing of rates, nor a light matter to permit such legislation
to wreck large property interests."
The question as to what sum, if any, upon the facts of this case
should be annually deducted from the net income as a permanent
maintenance or replacement fund is novel ,and presents a grave
problem.
Conflicting expert evidence has been introduced presenting
radically different theories as to the necessity, character, and
amount of such a fund, and as to how it should be created,
preserved, and expended. Some of this evidence puts the sum to be
annually deducted and set aside as a permanent fund at five percent
upon the value of the plant at the time of deduction. It is obvious
that, if this view is sound, there will be little or nothing of the
net income left for distribution among shareholders, and no basis
for legislative rate reduction now, and none likely until such time
as the income from the permanent fund will keep up the plant. The
work of reconstructing and replacing old parts by new in a plant of
this kind must, in the very nature of things, be going on
constantly. Heretofore it seems to have been so well and
continuously done that the value of the plant as a whole has
suffered less than one percent per annum if the total depreciation
be distributed through the more than thirty years of operation. So
far as can be now seen, reconstruction and replacement charges
have, up to the present time, been borne by current revenue, with
the result that the revenue remaining in the single year of 1907
showed a net surplus of $73,851.83 -- a sum large enough, if
distributed to shareholders upon the basis of the value of property
engaged in the business as claimed by appellant, to have paid a
dividend of ten percent, and about fifteen percent upon the
valuation settled by the circuit court.
There is no finding as to the extent of the application
Page 223 U. S. 364
of the revenue of 1907 to reconstruction or replacement, as
distinguished from current repairs and operating expenses. It is,
however, plainly inferable that the revenue of that year was used
to the extent necessary. If, in the past, reconstruction and
replacement charges have been met out of current expenses, the fact
must be taken into consideration both when we come to estimating
future net income and in determining what sum shall be annually set
aside to guard against future depreciation. This doubtless
influenced the court below in settling upon the amount of $8,000 as
a sufficient annual appropriation of income as insurance against
future depreciation. But if the constantly recurring necessity to
do reconstruction or replacement work was in 1907 met out of the
current income of that year, thereby diminishing the net income,
the fact should be given weight in estimating future net income --
otherwise there will be a double deduction on that account, first
by paying such charges as they occur and thereafter by a
contribution out of the remaining income for the same object.
The facts found are not full enough to at all justify this Court
in dealing with this problem of a replacement fund.
There should be a full report upon past depreciation, past
expense for reconstruction or replacement, and past operating
expenses, including current repairs. We should be advised as to the
gross receipts for recent years and just how these receipts have
been expended. Then the amount to be set aside for future
depreciation will depend upon the character and probable life of
the property and the method adopted in the past to preserve the
property. It can be readily seen that the amount to be annually set
aside may be such as to forbid rate reductions because of the
requirement of such a fund. The matter is one first for a skilled
master, who should make a full report upon the value of the
property, the receipts and the expenses of operation, and the sums
paid out on reconstruction
Page 223 U. S. 365
and replacements, and in dividends in recent years.
For the reasons indicated, we direct that the decree be
Reversed, and the cause remanded to the district court to
refer the case to a competent and skilled master, to report fully
his findings upon all of the questions raised by either party,
separately, and with leave to both parties to take any additional
evidence they may wish within a time to be fixed by the court, and
that that court, upon such report, proceed as equity shall
require.
It is further ordered for the protection of all parties that
the injunction granted in the court below continue in force until
final decree there, upon condition that the appellant enter into a
new bond, with sureties satisfactory to the court below, to account
for all overcharges to consumers since the original restraining
order, in the event the ordinance shall be sustained, and that, if
such bond be not made within twenty days after the filing of the
mandate, that the injunction stand dissolved.