1. The copying into the record, contrary to Equity Rules 75 and
76, of voluminous stenographic reports of proceedings before a
master, useless exhibits, and other matter irrelevant to the appeal
is an
Page 258 U. S. 166
indefensible practice which the court hereafter will feel at
liberty to punish to the limit of its discretion -- possibly by
dismissing the appeal. P.
258 U. S.
173.
2. Evidence
held sufficient to support conclusions of
the master and trial court that the eighty-cent gas rate fixed by
New York Laws 1906, c. 125, and upheld in
Willcox v.
Consolidated Gas Co., 212 U. S. 19, had
become confiscatory when this suit was begun and decided due to
increased costs of labor and materials, and would so continue. P.
258 U. S.
174.
3. There is a presumption that profits realized by a gas company
while subject to supervision by a Commission empowered to prohibit
unreasonable rates were lawfully acquired. P.
258 U. S.
175.
4. The public interest in the property of a public service
corporation dedicated to a public use, and the past success of its
enterprise, will not support a demand that it operate indefinitely
at a loss. P.
258 U. S.
175.
5. The fact that a gas company may not have supplied gas of the
candlepower required by statute will not debar it (as coming with
unclean hands) from equitable relief from a confiscatory rate when
its conduct has been subject to official control and it has
endeavored to meet its customers' requirements. P.
258 U. S.
175.
6. Books of a gas company, kept in ordinary course, under
supervision of a public Commission and free from suspicion,
held admissible as
prima facie evidence of the
confiscatory effect of a statutory gas rate. P.
258 U. S.
176.
7. As a condition to an injunction against a gas rate found
confiscatory, the court has discretionary power, which, however,
should be exercised very cautiously, to prescribe a maximum future
rate for a specified period as a limitation in favor of consumers.
P.
258 U. S.
177.
8. But a requirement that future collections made by the gas
company above the confiscatory rate shall be impounded for ultimate
distribution in accordance with a rate to be fixed by state
authority in the indefinite future is erroneous. P.
258 U. S.
177.
9. The district court has discretion to make orders pending
appeal to preserve the
status quo until decision by the
appellate court. P.
258 U. S.
177.
267 F. 231, 274 F. 986, modified and affirmed.
Appeals and cross-appeals from decrees of the district court in
a suit to enjoin the enforcement of a statutory gas rate.
Page 258 U. S. 171
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
The Consolidated Gas Company was organized in 1884 by
consolidation of six corporations then manufacturing, distributing
and selling gas in New York City, and has continued to carry on the
business making additions and extensions as required by the
increasing demand. Chapter 125, Laws of New York 1906, required it
to sell gas with illuminating power of 22 candles at no more than
80 cents per 1,000 cubic feet. A suit brought soon after this act
became effective to enjoin its enforcement, because confiscatory,
was finally dismissed without prejudice,
Willcox v.
Consolidated Gas Co., 212 U. S. 19, and
for many years thereafter the company supplied gas at the
prescribed rate. January 16, 1919, it instituted the present
proceeding against the Attorney General and other public officers.
The bill alleges that the statutory rate is confiscatory --
prevents and will continue to prevent a fair return on the property
used -- and prays for an injunction.
A master, appointed in May, 1919, heard testimony from day to
day for eight months -- about 20,000 printed pages -- and presented
this to the court with his report and opinion, May 5, 1920. Having
considered the results of actual operations during all of 1918 and
the first eight months of 1919, and well known subsequent
conditions, he concluded:
"On the basis of the prices, rates of pay, and costs prevailing
during the eight months beginning January 1, 1919, the cost of
making and distributing gas has been such as to allow a very small,
if any return, on even the actual investment, and, since September
1, 1919, the cost of making and distributing gas has been increased
in a number of respects, so that the fair inference is that the
complainant company now finds itself without any return upon the
investment.
Page 258 U. S. 172
The conditions found by me have existed for more than a year
last past, and to a lesser degree for at least a year before that
time, and will continue for at least a considerable period of time,
the end of which cannot now be forecast. Upon such a situation and
such a prospect, I think that the complainant company has shown
itself, clearly and beyond all reasonable doubt, entitled to relief
from the statutory limitation on its rates, but that its rate of
return should be calculated not upon the present high reproduction
cost of its property, with or without the deduction of observed or
actual depreciation, in whatever manner computed, but upon the
actual, reasonable investment in the property devoted to the
service of the complainant's consumers."
In a carefully prepared opinion, while disagreeing with the
master concerning some valuations and resolving all doubts against
the company, the court held the prescribed rate had been
confiscatory since January 1, 1918, and would continue so to be.
267 F. 231, 274 F. 986.
An amended decree -- entered August 11, 1920 -- enjoined
enforcement of the act upon condition
"that, until March 1, 1921, or until the earlier promulgation of
a gas rate applicable to the plaintiff by some competent authority
of the state of New York, the plaintiff shall neither charge nor
collect for the sale of gas in the city of New York more than the
sum of one dollar and twenty cents per thousand cubic feet,"
and also upon the further condition that it should impound, or
adequately secure, collections above 80 cents per 1,000 cubic feet
for ultimate distribution in accordance with any rate so
established.
A broad appeal was allowed in No. 257 September 9, 1920. In No.
258, an appeal allowed November 10, 1920, brings up those parts of
the August decree which imposed conditions upon continuation of the
injunction.
Page 258 U. S. 173
February 28, 1921, the trial court undertook to modify the
August decree by directing that the excess derived from sales above
80 cents per 1,000 feet should be impounded until three months
after determination of the appeal here, or until a rate should be
fixed by competent state authority, and, further, that such sums
should be subject to ultimate distribution "as nearly as may
equitably be done" in accordance with that rate and the approved
principles and findings relative thereto. The appeal from this
order is No. 288.
Equity Rules 75 and 76
* direct that
records on appeal shall not set forth the evidence fully, but in
simple condensed form, and require omission of nonessentials and
mere formal parts of documents. Without apparent attempt to comply
with these rules, and with assent of appellee's counsel, appellants
in No. 257 have filed a record
Page 258 U. S. 174
of 21 volumes -- 20,000 printed pages -- made up largely of
stenographic reports of proceedings before the master, with
hundreds of useless exhibits and many thousand pages of matter
without present value. This is indefensible practice, which we
shall hereafter feel at liberty to punish to the limit of our
discretion -- possibly by dismissal of the appeal. These rules were
intended to protect the courts against useless, burdensome records,
and litigants from unnecessary costs and delay. Counsel ought to
comply with them, and trial courts should enforce performance of
this plain duty.
The fundamental question presented for determination was whether
the eighty-cent rate had been confiscatory under conditions
existing during 1918 and 1919, and probably would continue so to
be. Considering the rulings here in
Willcox v. Consolidated Gas
Company and other cases, the answer required little more than
an appreciation of facts not very difficult to ascertain. The
master's report and opinion disclose careful and intelligent
consideration of the whole matter. "Resolving all doubts against
the plaintiff" and using valuations "pared down unsparingly," the
trial court agreed with the master's ultimate findings and ruled
that to enforce the statute would result in confiscation. Since
March 30, 1921, the Public Service Commission has had power to
prescribe rates for appellee unrestricted by the maximum specified
in the Act of 1906, but no such action has been taken. It did,
however, authorize a rate of $1.40, instead of 80 cents, for
another company operating in New York City, effective after August
1, 1920, and has thus indicated its informed judgment.
See
Morrell v. Brooklyn Borough Gas Co., 231 N.Y. 405. We are, of
course, aware of the enormous increase in cost of labor and
materials since this Court declared that appellee might possibly
earn six percentum under the eighty-cent rate. In view of all these
things, only very cogent reasons would
Page 258 U. S. 175
justify complete reversal of the challenged decree. The points
relied upon by appellants in No. 257 and their supporting arguments
have been considered, and we think no such reasons are shown. To
discuss all of these would subserve no sufficient purpose -- only a
few present questions of general interest.
Appellants earnestly insist that they were denied fair and
impartial trial both by the master and the court. So far as it
relates to the court, we dismiss the suggestion as frivolous.
Undoubtedly, during the many months devoted to hearings, the master
talked too much and often unwisely; but, manifestly, appellants'
counsel made the situation unnecessarily difficult and failed to
support the master's earnest efforts promptly to ascertain the
essential facts. Looking at all the circumstances, we are unable to
conclude that any substantial right was denied. The size of the
record, eight months of almost daily hearings, and the master's
reiterated offers to hear properly prepared and helpful evidence
show that abundant opportunity was given for presentation of
appellants' cause. The master wisely sought to exclude ill-advised
cross-examinations and other unimportant matter.
Since 1907, the Gas Company has been subject to supervision by a
Commission empowered to prohibit unreasonable rates, and the
presumption is that any profits from its business were lawfully
acquired.
Municipal Gas Co. v. Public Service Commission,
225 N.Y. 89, 99. Mere past success could not support a demand that
it continue to operate indefinitely at a loss. The public has no
such right in respect of private property, although dedicated to
public use. When it became clear that the prescribed rate had
yielded no fair return for more than a year, and that this
condition would almost certainly continue for many months, the
company was clearly entitled to relief.
The claim that appellee had failed to supply gas of the
prescribed candlepower, and therefore came into court
Page 258 U. S. 176
with unclean hands and should not be heard, is without merit.
The company was subject to official control; the facts as to
candlepower of the gas actually furnished are in dispute; the
calorific quality had become more important to most consumers than
the illuminating one; the master reached the conclusion that the
statutory standard had been substantially complied with; it had
earnestly tried under very difficult circumstances to meet its
customers' requirements. It sought relief from an unlawful burden
-- the fundamental wrong arose from the statute -- and we find
nothing which could justify refusal to consider its demand.
Complaint is also made because the master admitted appellee's
books in evidence. These books were kept in the ordinary course
under general supervision of the Commission, appeared free from
suspicion of dishonesty, were submitted to appellants' experts, and
were the only readily available sources of detailed information
concerning the company's affairs. In the circumstances, we think no
harm resulted from admitting them as
prima facie evidence.
Rowland v. Boyle, 244 U. S. 106,
244 U. S.
108.
The general doctrine applicable when rates are alleged to be
confiscatory has been so often stated that present discussion of it
is unnecessary.
Knoxville v. Water Co., 212 U. S.
1;
Willcox v. Consolidated Gas Co.,
212 U. S. 19;
Des Moines Gas Co. v. Des Moines, 238 U.
S. 153;
Rowland v. Boyle, 244 U.
S. 106;
Denver v. Denver Union Water Co.,
246 U. S. 178;
Lincoln Gas Co. v. Lincoln, 250 U.
S. 256.
In No. 258, the Gas Company complains of the limit of $1.20 per
1,000 cubic feet up to March 1, 1921, as a condition to
continuation of the injunction, and also because sums above 80
cents per 1,000 were impounded for ultimate distribution in
Page 258 U. S. 177
accordance with any rate which might be fixed thereafter by
competent state authority.
It was within the court's discretion to grant the injunction
upon terms, and we cannot now say that the limitation upon charges
amounted to abuse. But grave injustice may result from action of
this kind, and the power should be very cautiously exercised.
See Morrell v. Brooklyn Borough Gas Company, 231 N.Y. 405.
It was error to direct ultimate distribution of the impounded funds
in accordance with any subsequently approved rate. Ratemaking is no
function of the courts, and should not be attempted either directly
or indirectly. After declaring the eighty-cent rate confiscatory,
the court should not have attempted, in effect, to subject the
company for an indefinite period to some unknown rate to be
proclaimed in the future upon consideration of conditions then
prevailing.
The amendatory decree of February was obtained long after
appeals from the August decree had been granted, and when the court
had very limited power over the litigation.
"One general rule in all cases (subject, however, to some
qualifications) is that an appeal suspends the power of the court
below to proceed further in the cause."
Undoubtedly, after appeal, the trial court may, if the purposes
of justice require, preserve the
status quo until decision
by the appellate court.
Hovey v. McDonald, 109 U.
S. 150,
109 U. S. 157.
But it may not finally adjudicate substantial rights directly
involved in the appeal.
Merrimack River Savings Bank v. Clay
Center, 219 U. S. 527,
219 U. S. 534.
See First Nat. Band v. State Bank, 131 F. 430. The precise
result of the February decree is somewhat doubtful, but we may
treat it as an attempt to preserve the
status quo in order
that this Court might finally and completely dispose of the whole
matter. Thus, interpreted the decree (No. 288) was within the
court's
Page 258 U. S. 178
discretion, and, as there was no abuse of this discretion, it
must be affirmed.
All impounded funds should be promptly released to the Gas
Company subject only to deductions for such costs as are clearly
assessable to the prevailing party. Costs of appeal No. 257 will be
taxed to appellants; in No. 258, to the appellees. Modified as here
indicated, the decree below is affirmed. The cause will be remanded
for further proceedings in conformity with this opinion.
It seems proper to add that we do not intend by anything said
herein to intimate what would have been a reasonable rate for the
sale of gas under the circumstances disclosed. The eighty-cent rate
was confiscatory; the $1.20 maximum imposed by the court during a
specified period as a condition to the injunction was a limitation
in favor of the consumers.
*
"Equity Rule 75."
"
* * * *"
"(b) The evidence to be included in the record shall not be set
forth in full, but shall be stated in simple and condensed form,
all parts not essential to the decision of the questions presented
by the appeal being omitted and the testimony of witnesses being
stated only in narrative form, save that, if either party desires
it, and the court or judge so directs, and part of the testimony
shall be reproduced in the exact words of the witness. The duty of
so condensing and stating the evidence shall rest primarily on the
appellant, who shall prepare his statement thereof and lodge the
same in the clerk's office for the examination of the other parties
at or before the time of filing his praecipe under paragraph (a) of
this rule. . . ."
"Equity Rule 76. In preparing the transcript on an appeal,
especial care shall be taken to avoid the inclusion of more than
one copy of the same paper and to exclude the formal and immaterial
parts of all exhibits, documents, and other papers included
therein, and for any infraction of this or any kindred rule, the
appellate court may withhold or impose costs as the circumstances
of the case and the discouragement of like infractions in the
future may require. Costs for such an infraction may be imposed
upon offending solicitors as well as parties. . . ."