1. Failure to make up a record in accordance with the rule is
cause for dismissing an appeal. P.
271 U. S.
132.
Page 271 U. S. 132
2. Decree
affirmed insofar as it enjoined enforcement
of an order establishing confiscatory gas rates, but reversed
insofar as it undertook to adjudge a basic valuation of the
company's property, as of a specified date, conclusive on the state
for future ratemaking purposes, and insofar as it undertook to
specify the percent of net profit, the depreciation, and other
allowances to which the company should be entitled, including
amortization of expenses of the suit and of losses resulting from
the enjoined rates, and to restrain further examination of the
company's books and papers for the purpose of impairing the
aforesaid basic valuation. P.
271 U. S.
134.
3. Prior to the Jurisdictional Act of February 13, 1925, a
single district judge, holding the court on final hearing, had
power to award a permanent injunction at variance with the views
held by Circuit Judges when the same matter was considered by the
special court on application for preliminary injunction, but such
power was to be cautiously exercised. P.
271 U. S. 136.
290 F. 476 affirmed in part, reversed in part.
Appeal from a decree of perpetual injunction in a suit in the
district court brought by the Gas Company to restrain the members
of the Alabama Public Service Commission from enforcing a
confiscatory rate schedule, and for other relief.
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
The record in this cause has been made up with such disregard of
the rules that we cannot undertake to examine the evidence or to
discuss
seriatim the 34 jumbled assignments of error. It
would be permissible to dismiss the appeal,
Newton v.
Consolidated Gas Co., 258 U. S. 165,
258 U. S. 174,
but, considering the public interest and with purpose to prevent
any serious miscarriage of
Page 271 U. S. 133
justice, we have examined the pleadings, the master's report,
the opinions, and the decrees. In the circumstances, we think the
proper course is to modify and then to affirm the decree of the
court below.
By an original bill of August 14, 1922, the gas company asked
that members of the Alabama Public Service Commission be restrained
from attempting to enforce a rate schedule which it alleged was
confiscatory.
A supplemental bill, filed April 18, 1923, after referring to
the original bill and proceedings thereunder, among other things,
alleged: that, as provided by the Act of the Alabama Legislature
approved October 1, 1920, the Commission ascertained and declared
the value of the company's property for ratemaking purposes as of
December 31, 1921, at the latter's request and expense. That this
valuation was made under a valid contract with the state, and she
was obligated to accept it for ratemaking purposes. That, by an
unconstitutional Act approved February 13, 1923, the legislature
undertook to authorize, and the Commission intended to make,
another valuation. That so to do would violate the contract which
the state deliberately entered into, and greatly injure the
company. In addition to the relief originally asked, the prayer was
for a decree declaring the Commission's valuation final for all
ratemaking purposes and the challenged act invalid. Also for an
injunction restraining the Commission from attempting to establish
any new valuation for ratemaking purposes.
Upon application for an injunction under the supplemental bill,
the district court, composed of two circuit judges and one district
judge, held (June 4, 1923) that no continuing contract between the
state and the company resulted from the Commission's action in
respect of the first valuation and refused to enjoin the proposed
revaluation. District judge Clayton expressed another view.
Page 271 U. S. 134
Later, October 31, 1923, the district court, Judge Clayton only
presiding, entered the following final decree:
"1. That the value of the properties of the Mobile Gas Company
as of December 31, 1921, has been definitely fixed for the future
ratemaking purpose by contract entered into by the State of
Alabama, acting by and through the Alabama Public Service
Commission, on the one part, and the Mobile Gas Company, on the
other part, and that the defendants in this case and their
successors in office are hereby forever enjoined from attempting to
impair the obligations of this contract by failing or refusing to
accept the said valuation as a permanent basic valuation as of
December 31, 1921, for all future ratemaking purposes."
"2. Also that the tariff of rates established by the Alabama
Public Service Commission, by its order of July 24, 1922, is
confiscatory and void, and further that the Mobile Gas Company is
entitled to earn a net profit of 8 percent per annum upon
$2,007,520.68, consisting of $1,969,565, which was established as
the permanent basic valuation of the plaintiff's property as of
December 31, 1921, and $37,955.68, which covers additions to
property from December 31, 1921, to December 31, 1922, and that, in
ascertaining said net profit, the plaintiff must be allowed a
depreciation reserve of 2 1/2 percent upon the value of the
property, and a further credit of $25,000, amortized over a period
of five years, on account of the expenses incurred in resisting the
enforcement of said confiscatory tariff of rates, and also to a
further credit of $27,025.77, amortized over a period of five
years, being losses imposed upon the plaintiff between August 12,
1920, and November 1, 1920, by reason of the refusal of the Alabama
Public Service Commission to permit the operation of a schedule of
rates filed by the plaintiff on August 12, 1920. "
Page 271 U. S. 135
"3. That defendants Andrew G. Patterson, Fitzhugh Lee, and Frank
P. Morgan, and their successors in office, as members of the
Alabama Public Service Commission, be and and they are hereby
forever enjoined from enforcing or attempting to enforce the said
tariff of rates promulgated by the order of the Alabama Public
Service Commission on July 24, 1922, or from establishing or
attempting to enforce any other tariff of rates which is
insufficient to produce a return of 8 percent per annum upon the
then value of the plaintiff's properties used and useful in the
public service, assuming as a basic valuation of said company's
property on the 31st day of December, 1922, the sum of
$2,007,520.68. The court reserves the power to modify said
injunction at any time, when by reason of changed conditions any
tariff of rates, the establishment and enforcement of which is
hereby forbidden, may become compensatory."
"4. Also that the defendants and their successors in office are
hereby forever enjoined from compelling or attempting to compel the
plaintiff to submit its properties, books, documents, accounts, and
vouchers to examination by the Alabama Public Service Commission or
its representatives for the purpose of repudiating or in any wise
impairing the valuation of the plaintiff's properties as of the
31st day of December, 1921, as a basic valuation for future
ratemaking purposes."
"5. Also that a writ of permanent injunction issue from this
court in accordance with this decree."
"6. The exceptions to the report of the special master are
hereby overruled, and the said report is hereby approved and
confirmed."
To that portion of this decree which adjudged the rate schedule,
prescribed by the Commission's order of July 24, 1922,
confiscatory, and enjoined any attempt to enforce it, we find no
reason to object, and to that extent, it is affirmed.
Page 271 U. S. 136
The remaining portions of the decree must be eliminated. We
think they were improvident, and go materially beyond what the
circumstances require. But whether or not they announce correct
conclusions of law we do not decide. The matters to which they
relate are left open, and subject to further and future original
consideration by any proper tribunal. While within his powers as
the law then stood, the district judge went very far when he
entirely disregarded the views of the circuit judges who sat on the
specifically constituted court. The statute was materially changed
by the Act of February 13, 1925, c. 229, 43 Stat. 936, 938, and now
causes like this must be finally adjudicated by a court composed of
three judges. To such a court we think the questions to which those
portions of the decree relate ought to go before we undertake
finally to pass upon them.
The approved portion of the decree will protect the company
against immediate danger of serious injury, and if hereafter its
rights are threatened by further unlawful interference, application
for relief may be made to the proper specially constituted district
court.
With the indicated modifications, the decree below is affirmed.
All costs will be charged against the appellants.
MR. JUSTICE SANFORD concurs in the result.