Washington Gas Light Co. v. Byrnes

MILLER, Associate Justice

(dissenting).

I think the decree of the District Court should be affirmed. The decision of this case does not turn upon the power of courts to interfere with the findings and determinations of regulatory bodies, or upon the findings and determinations made by the Commission in the present case. The questions are (1) whether full intervention was permitted and a fair hearing given within the meaning of the applicable statute; (2) whether a rate increase was made contrary to the requirement of the statute.

Making full allowance for the fact that the Inflation Control Act of October 2, 1942,1 represented a compromise between contending factions in Congress — as most legislation does — nevertheless some substantial purpose must have been intended to be served by inclusion therein of the provision “That no common carrier or other public utility shall make any general increase in its rates or charges which were in effect on September IS, 1942, unless it first gives thirty days notice to the President, or such agency as he may designate, and consents to the timely intervention by such agency before the Federal, State, or municipal authority having jurisdiction to consider such increase”2 [Italics supplied]

In the first place, this proviso clearly defines the issue which is to be tried by the authority having jurisdiction of the case in which intervention is required, namely, whether or not the public utility “shall make any general increase in its rates.” The issue is not whether an increase shall be made pursuant to an arrangement theretofore agreed upon, or upon notice theretofore given, or upon terms theretofore defined, or in such an investigation as may be deemed “necessary or convenient” by the authority. The issue is simply and plainly, shall cm increase be made. The trial of no lesser issue, however arrived at, can satisfy the requirement of the statute. Limiting the Administrator’s intervention to the application of a sliding-scale formula previously adopted, therefore, defeated the purpose of the Act.

It is the duty of courts in interpreting statutes to avoid absurd results. Whatever may have been said in explanation of an act, its plain language cannot be disregarded. To limit the effect of the present Act to “the right to show that an increase in rates would tend to increase the cost of living and thereby impair the stabilizing effect of the government’s price regulation,” would reduce it to an absurdity. It is a matter of common knowledge that increases in rates tend to increase the cost of living. The Commission might well be expected to take notice of the fact. Intervention and fair hearing would not be necessary to make such a showing. If no more had been intended by the Act it could have been so indicated therein without requirement of notice or intervention.

Neither is the only alternative to such a purposeless intervention, “the power to participate in the decision or to control the proceeding.” It is reasonable to suppose that Congress intended an intervention of the usual character. Intervention in a trial court does not contemplate participation in the decision; neither does it give to the intervenor power to control the proceeding. But it does contemplate that the court may be required to try the issues contemplated by the applicable laws; it empowers an intervenor, just as any other party, to insist upon compliance with the law and to challenge, in an appellate court, the failure of the trial court to do so. No less was intended here.3

Considerable reliance is placed upon the provisions of the District Code defining the powers of the Commission. It is argued that experience has shown the *561prevailing practices of the Commission .to be adequate to secure proper service and a fair rate of return, hence that it is not reasonable to suppose Congress intended to limit the powers originally conferred upon the Commission; especially as repeal by implication is not favored. In Henderson v. Washington, Marlboro & Annapolis Motor Lines, Inc.,4 this Court said, concerning the Inflation Control Act of October 2, 1942: “But, apart from all statutes existing prior to October 2, 1942, and all orders, rules and regulations made pursuant to those statutes, the Act of October 2, 1942, is conclusive of the issue presented for our decision. As it was enacted subsequent to the Interstate Commerce Act it supersedes that Act, to whatever extent may be necessary to achieve its own purposes. Its clearly expressed purpose was to stabilize prices, wages and salaries affecting the cost of living, upon the basis of the levels which existed on September 15, 1942.” This language is equally applicable in the present case. On June 9, 1943, Judge Sibley, speaking for the Fifth Circuit Court of Appeals,5 held that Section 265 of the Judicial Code6 forbidding the grant of an injunction by a court of the United States to stay proceedings in a state court must be considered modified by the later provisions of the Emergency Price Control Act.. The present case involves much less difficulty. The Commission is a creature of Congress; its powers are derived from legislation enacted by Congress; there is no question of policy to be surmounted, in interpreting the earlier statutes in such manner as to secure their conformance to the purposes of later acts. While repeals by implication are not favored, repeals by implication do occur. When, as here, a new law is designed to achieve a clear purpose, it must be respected; and inconsistent procedures, previously existing must be disregarded. Consequently the rules adopted by the Commission governing its procedure and the shaping of issues have no vitality as against the requirement of the Act of October 2, 1942, that intervention must be permitted, or against any legal implications which flow from that requirement. From then on, it is not a question of the Commission or the Price Administrator controlling the proceedings. It is the lam which controls the proceedings and if the Commission does not comply with the law, the Price Administrator’s duty is to challenge its failure to comply; and ours to uphold the challenge.

Neither is it material to the decision of this case that the Commission reduced the allowance which the sliding scale would have justified. The important fact is that the Commission allowed an increase of rates. If that allowance was made without granting full intervention and a fair hearing within the meaning of the applicable statute then the action of the Commission was improper and the decision of the District Court should be affirmed. With all deference to the majority, there was a refusal by the Commission to permit full intervention and to receive evidence with regard to the inflationary effect of an increase in rates. Only to the extent that offered evidence assumed the validity and unimpeachability of the sliding-scale arrangement, would the Commission receive it. Upon the same theory the Commission denied the Administrator’s request to examine the Company’s books and records. And upon the same theory the Commission refused to permit inquiry concerning the validity of the basic assumptions of the sliding-scale arrangement.

An argument of convenience is made upon the theory that compliance with the Administrator’s demand for intervention and hearing would have required “a complete rate investigation,” “a survey of the entire field,” “the laborious calculation and studies that a thorough rate investigation necessarily entailed,” “a complete investigation of all the elements that enter into the determination of a utility rate by a regulatory body”. Attention is called in this connection to the fact that the investigation leading to the adoption of the sliding scale in 1935 required three and a half years for its completion and cost $750,000. It is asserted that the kind of inquiry that the Administrator now demands could not be made without great expense of time and money. I do not so read the record. What the Administrator asked was merely a reconsideration of the basic principles of the sliding-scale arrangement in the light of present economic con*562ditions and the Government’s program to prevent inflation; namely, what is a proper rate base; what are fair and proper operating expenses; what account should be taken of depreciation; what are proper income taxes to be allowed; what is a fair rate of return for the Company in the light of current economic conditions? There was no suggestion that the great mass of information gathered prior to 1935 was not equally available for present purposes. There was no objection to the introduction by the Commission of other available material in its files, just as is done by the Interstate Commerce Commission and by other regulatory authorities.

It is significant in this respect that the Commission, itself, went back of the sliding-scale arrangement in its allowance of an increase of rates. If, as is contended, an inquiry into the basic principles of a sliding-scale arrangement necessarily requires a three year investigation, at a cost of $750,000, how does the Commission explain its disregard of the sliding-scale arrangement in allowing accruals for income taxes at the rate of 31 per cent, although the sliding scale provided for an allowance of 40 per cent? Some basic principle of the arrangement must have been violated by that action. In short, my conclusion is that this argument about a large scale, expensive, time-consuming investigation, was advanced by the Commission and supported by the Gompany as camouflage to hide their unwillingness to permit any inquiry which did not assume and admit the infallibility of the sliding-scale arrangement. And I conclude that, whatever the proper limits ■of inquiry may have been, the Commission fell far short of them in the present case. The Commission and the Company apparently assume that only two alternatives were open (1) to proceed as the Commission specified in its original order of March, or (2) to enlarge the proceeding to permit a complete reinvestigation of every element, of fact as well as of principle, involved in the original sliding-scale arrangement. There were, instead, at least two other alternatives, (1) to permit no increase in rates until the war is over, as a matter of policy; (2) to permit the Price Administrator to present such evidence as he deemed proper7 concerning any phase of the matter; then, in deciding the case, to use, if the Commission pleased, the records of the earlier investigation, the sliding-scale arrangement and other of its pertinent records, compiled by its experts — and properly introduced as evidence. This could probably have been easily done in the time which was actually consumed, at the hearing, in contending over the scope of the intervention and the issues to be tried. In any event, I agree with the District Court that: “The sliding scale arrangement is not a contract, certainly not one which binds the public. It must give way to public policy and to Congressional enactment which expresses that policy. * * * it must now be subjected to a test not previously required.”

It is suggested that the increase in rates, granted by the Commission in the present case, is very small, both in total and in their effect upon individual consumers. It is argued also that utility rates are not exposed to “speculative, unwarranted and abnormal increases,” hence that Congress did not intend to apply to the guidance of regulatory authorities the wartime standards of the Inflation Control Act. I cannot follow this reasoning. Because Congress chose to retain regulation in authorities already existing, rather than placing it in the hands of the President, cannot explain away the fact that such rates were brought within the compass of the Act. There is no reason why the standards applicable in the one case should be inapplicable in the other. So far as concerns the minimal character of the rate increases I am content to adopt the language of Judge Vinson in the case of Lincoln Savings Bank of Brooklyn v. Prentiss M. Brown,8 when speaking for the United States Emergency Court of Appeals, concerning the contention that the Price Act contemplated regulation only of those commodities, the prices of which substantially affect the cost of living, he said: “It is true that an increase in complainant’s prices, in and of itself, does not substantially affect living costs. Complainant’s statement is correct, *563so far as it goes, but it is deceptive in its intended inference that, for that reason, no purpose is served by the regulation of safe deposit rental rates. Accession to this type of reasoning would virtually destroy the effectiveness of the Act. Complainant’s argument is applicable to thousands of commodities besides its own. Clearly, however, the collective effect of so many increased prices could create the very chaotic condition that the Act was designed to prevent. It is plain to us that there is compelling reason to restrain the complainant and others in its class from making their individually inappreciable contributions to what would result in a very appreciable total.” [Italics supplied]

The Administrator suggests the following possible constructions of the proviso to the second sentence of Section 1 of the Inflation Control Act: (1) “And such regulatory authority, in determining whether to grant or deny the increase, may give such effect, if any, to the national stabilization program as it may deem appropriate (2) “And such regulatory authority, in determining whether to grant or deny the increase, shall give effect to the national stabilization program;” (3) “And such regulatory authority, in determining whether to grant or deny the increase, shall grant the increase only if, and to the extent, it finds the increase necessary to aid in the effective prosecution of the war or to correct gross inequities.” I agree with the Administrator that the third suggested construction is correct. The monopoly character of public utilities; the absolute dependence of the people upon them for service; the complicated structure of their, holdings and their financing; these and other similar considerations are the very ones which caused the development of great federal, state and local regulatory agencies. It is because such agencies are well equipped to supervise and regulate, that Congress decided to preserve their control, rather than to throw a greatly increased burden upon wartime, emergency agencies such as the Price Administrator. But that decision does not by any means require the conclusion that these regulatory agencies were not to consider the existence of a war emergency or apply the wartime standards which are implicit in the Act of October 2, 1942. It was, undoubtedly, the duty of the Commission to consider the financial condition of the Company, its ability to serve the Washington area, and its ability to refinance itself. It is, also, undoubtedly the duty of the President, the Price Administrator and other appropriate governmental agencies to consider the financial condition of other industries, of agricultural interests, of wage earners and of men selected for military service. The exigencies of war make it necessary, however, to impose controls which would not be proper during peacetime.

When young men are giving their lives by thousands, when the normal economy has given way to the necessities of war, when industrial organizations, great and small, have been converted to war production or perhaps destroyed,9 it seems to me that a curious lack of identification with our national emergency and our national effort is required, to continue speaking in terms of normal arrangements and peacetime formulae. It is true, as the history of this legislation shows, that it is a compromise. But the significant thing is that the disputed proviso was incorporated, at all, into the Act of October 2, 1942. If the intention of Congress had been to leave regulation of the utilities by existing agencies solely according to prewar standards, it was not necessary to say anything about them in this Act. Of course it is possible to find language in legislative history which will support either side of a bitterly contested issue upon which a compromise is finally reached. Perhaps each proponent and opponent hopes that when the courts come to interpret their compromise language, the interpretation will fall his way. As previously stated, however, our task is to read the Act in such manner as to avoid an absurd result and to give it meaning, in the light of its expressed over-all purpose. There can be no doubt of that purpose in the present case. It was certainly not the intention of the lawmakers to leave these regulatory bodies, or the utilities, free of concern for the wartime welfare of the Country, to do business “as usual” according to such sliding-scale arrangements, designed for peacetime, depression-*564ridden Washington, as are involved in the present case.

The Commission’s order of October 13, 1942, specified that the new, increased rates became effective on September 1, 1942, under the terms of the sliding-scale arrangement. On October 14, the Company gave notice to the Price Administrator, but in that notice specified that the effective date of the increase was September 1, 1942; in its order of October 23, 1942, the Commission specified again that the effective date of the increased rates was September 1, 1942, and it permitted intervention for the receipt of evidence concerning the increase in rates authorized by its order of October 13, 1942; on October 30, 1942, the Company consented to intervention; in its order of November 9, 1942, the Commission recited that intervention had been permitted for the purpose of receiving evidence bearing on the increase authorized by its order of October 13; on November 16, 1942, it denied the Administrator’s petition for reconsideration. On the record of the Commission, therefore, its order of October 13, 1942, still stands; the increase in rates is effective as of September 1, 1942. The Act provides that no increase in rates which were in effect on September IS, 1942, shall be made unless the utility, “first gives thirty days notice * * * and consents to the timely intervention. * * * ” [Italics supplied] In my opinion the increase, made in this case, was in clear violation of the law, entirely apart from the merits of the case.

A study of the record, particularly as interpreted in the opinion of Commissioner Hankin, suggests that when the time comes to consider the case on the merits, some of the findings and conclusions of the Commission will not stand careful scrutiny. But those questions are not before us. The decree of the District Court is clearly correct, on questions of procedure alone, and should be affirmed.

56 Stat. 765, 50 U.S.C.A.Appendix §§ 961 et seq.

56 Stat. 765, 50 U.S.C.A.Appendix § 961.

Cf. Federal Communications Commission v. National Broadcasting Co., 63 S.Ct. 1035, 87 L.Ed. —.

132 F.2d 729, 732, cert. denied, 63 S.Ct. 854, 87 L.Ed. —.

Henderson (Brown) v. Fleckinger, 5 Cir., 136 F.2d 381.

28 U.S.C.A. 379.

In the Henderson case, App.D.C., 132 F.2d 729, 732, we said: “* * * the new Act * * * permits timely intervention by the Price Administrator * * * followed by such appropriate showing as he may wish to make.”

137 F.2d 228.

See for an example of such possibilities, Perkins v. Lukens Steel Co., 310 U. S. 113, 60 S.Ct. 860, 84 L.Ed. 1108, and Lukens Steel Co. v. Perkins, 70 App.D.C. 354, 107 F.2d 627.