dissenting.
This is an important case. The amount at stake is great, and the principles involved are more important. The reduction made by the commission when prescribing what it found to be reasonable rates, October, 1928, is not definitely shown.. But the amount by which the rate of return was reduced indicates a probable reduction by more than a million per year. The net reduction made in No-vember, 1930, by the order undei* consideration is more than one million per year. That is enough to yield a return of seven per cent, on over $14,000,000. There is also involved more than $2,500,000 now held by the company subject to claims of customers that it be refunded to them if the order shall be sustained. ..
.The commission, following theories that admittedly are contrary to our decisions in confiscation cases, refused to ascertain or to consider the value of the property.1 It *322made' the last reduction upon mere cost figures. Its/' fair value” figure is higher than its “historical cost.” The *323commission based that increase on its finding that unit prices properly applicable to the prescribing of reasonable rates for the future are higher than were those actually paid throughout the years for the construction of the property. This increase amounted to $4,796,000 and it was found correct by the district court and also in the concurring opinion below. But this court excludes it .and holds to original cost. The amount involved in that item alone is more than enough to require reversal.
The commission excluded from overhead expenditures actually made by the company the difference between six per cent, and 11.25 per cent, upon the ground that the company charged such difference to operating expenses and hot to capital. It refused to give any consideration to the findings of its own engineer that in a proper estimate of the cost of reproduction as of the date of the inquiry such overheads would exceed 22 per cent. The company’s estimate was about 24 per cent. Each of these rulings is directly contrary to our decisions. Board of Comm’rs v. N. Y. Tel. Co., 271 U.S. 23, 31; S. W. Tel. Co. v. Pub. Serv. Comm’n, 262 U.S. 276, 287; Ohio Utilities Co. v. Commission, 267 U.S. 359, 362; McCardle v. Indianapolis Water Co., 272 U.S. 400, 408-410; St. L. & O’Fallon Ry. Co. v. United States, 279 U.S. 461, 484-485. The district court followed the commission. This court in accordance with law settled by its own decisions, repudiates that method of treating overheads and adopts 11.25 per cent. It refuses, as did the commission and the lower court, to give any weight to admitted reproduction cost in respect of overhead expenditures.
The valuation by the commission was based upon an inventory agreed to be correct by the plaintiff and commission. It included two standby plants to which the commission attributed $3,000;000. The district court adopted that figure. It declared, 58 F. (2d) 259, that *324the commission included these plants as a “ live, necessary part of the operative property.” 2 But this court excludes the item. Three million so thrown out is sufficient to require reversal. ' It was for the commission to decide whether these plants are required properly to safeguard the public service. This court should hesitate long before holding they are not. Seven per cent, on three million dollars so eliminated is $210,000, about 58 cents on each of> the 385,000 meters, a small charge to insure readiness to serve.
The commission refused to consider or allow anything .for going value.- Plaintiff’s gas properties- adequately serve a great and, before the present depression, a rapidly growing demand. If permitted to charge reasonable rates, or those merely high enough to be non-confiseatory, plaintiff will continue to be able to earn an ample rate of return upon the value of the property. Its charges for gás are low in comparison with those generally collected for like service. The record shows that, having regard to the effective thermal units, in the natural gas that plaintiff has been furnishing in recent years, its rates are less than one-half those formerly collected by it. And, in absence of contrary showing and finding, its charges must be deemed to have been considered just and reasonable by the regulatory authorities of the. State and by the public. *325Unquestionably, and the .opinion of this court so implies, millions should be added to the cost figures applicable to the physical items in order to find the value of plaintiff’s property, the amount protected by the Constitution.. The ground on >which. the, commission excluded. going value was that the cost of attaching the business was charged to operating expenses. The district court followed the commission. That being contrary to law; this court repudiates the rulings of both and uses over $5,500,000 as going value. Its calculations to reach value produce a figure substantially the same as the commission’s “ fair value ” cost figure. But that was attained by the application of formula, a thing repeatedly condemned here. Minnesota Rate Cases, 230 U.S. 352, 434; Bluefield Water Works Co. v. Pub. Serv. Comm’n, 262 U.S. 679, 690; McCardle v. Indianapolis Water Co., 272 U.S. supra, 410.
This Court’s conclusion — depending upon mere coincidences — that value is the same as the “ fair value ” cost figures found by the commission is without support. The figure used to cover going value was arrived at' upon considerations that have no relation to the amount that in any view reasonably may be assigned to that element. It comes about thus: Add $3,000,000 (made available by excluding the standby plants found necessary by the commission and included by the district court) to $4,796,000 (obtained by reversing the findings of commission and accepted by the lower court in respect of unit prices). A part of that total is used to neutralize the errors in law .committed by the commission and the lower court in respect of overheads. Enough is taken to increase that itém from 6 per cent, to 11.25 per cent. And the calculatéd balance, $5,618,235, is assigned to going value. That figure certainly is not the result of an appraisal or valuation of plaintiff’s going value. ' Neither the amount attributed to the standby plants eliminated by this court nor the *326commission’s addition’ to original cost to get its “ fair' value ” figure has any relation to going value. When in confiscation cases any going value exists, the amount justly attributable thereto must be ascertained and included. See, e.g., National Waterworks Co. v. Kansas City, 62 Fed. 853, 865; Omaha v. Omaha Water Co., 218 U.S. 180, 202; Des Moines Gas Co. v. Des Moines, 238 U.S. 153, 165; Denver v. Denver Union Water Co., 246 U.S. 178, 192; Galveston Elec. Co. v. Galveston, 258 U.S. 388, 396; McCardle v. Indianapolis Water Co., supra, 414; People ex rel. Kings County L. Co. v. Willcox, 210 N.Y. 479, 486; 104 N.E. 911.
The rates should be set aside because arrived at by arbitrary methods condemned by our decisions.
The State, by the exertion of legislative power, established the rule that public utility rates, including those charged for gas, shall be just and reasonable. It is powerless to enforce, and therefore must be presumed to have intended that its commission should not attempt to prescribe, confiscatory rates. The commission’s field of ac-lion is within reasonable limits above the point or line where confiscation would commence. Banton v. Belt Line Ry., 268 U.S. 413, 422-423. In ascertaining the return protected by the Constitution, the commission is required to take into account and make proper allowances for the actual original, and the estimated present, cost of the property, including overheads. It is bound to include a just and reasonable amount to cover going value. The amount omitted in respect of each of these items is large enough to invalidate rates based on the valuation. There is no warrant for inquiry by this court to ascertain whether under the evidence the valuation of the. .property might otherwise have been pared down to the figure used by the commission'and adopted by the district court. It is definitely settled by our decisions,that where public utility rates, prescribed by a state commission as reasonable, are *327attácked as confiscatory, the courts may inquire into the method by which the commission’s conclusion was reached and that, if such rates are based upon property valuation or other essential fact that was arbitrarily arrived at or that is without support in the evidence, such rates will be set aside. Northern Pac. Ry. Co. v. Dept. Public Works, 268 U.S. 39, 42-45; Chicago, M. & St. P. Ry. Co. v. Pub. Util. Comm’n, 274 U.S. 344, 351; St. L. & O’Fallon Ry. Co. v. United States, supra, 485. Cf. United States v. Abilene & So. Ry., 265 U.S. 274, 288; Chicago Junction Case, 264 U.S. 258, 263; Interstate Commerce Commission v. Union Pacific R. Co., 222 U.S. 541, 547.
The lower court’s decree and opinion taken together may not reasonably be construed to comply with Equity Rule 70%. In confiscation cases, the rule should be strictly enforced. The trial court should make a definite and complete statement of the facts on which it rests its judgment. Cf. Aetna Insurance Co. v. Hyde, 275 U.S. 440, 447. In a number of cases decided in recent years specially constituted district courts failed to make definite findings or to give reasons upon which they grounded their decrees. This court repeatedly and emphatically reminded them of the proper practice and required that it be followed. Virginian Ry. Co. v. United States, 272 U.S. 658, 675; Lawrence v. St. L.-S. F. Ry., 274 U.S. 588, 596; Arkansas R. R. Comm’n v. Chicago, R. I. & P. Ry. Co., 274 U.S. 597, 603; Hammond v. Schappi Bus Line, 275 U.S. 164, 171; Cleveland, C., C. & St. L. Ry. Co. v. United States, 275 U.S. 404, 414; B. & O. R. Co. v. United States, 279 U.S. 781, 787; Railroad Commission v. Maxcy, 281 U.S. 82; Smith v. Illinois Bell Tél. Co., 282 U.S. 133, 162; Tax Commissioners v. Jackson, 283 U.S. 527, 533; Public Service Comm’n v. Northern Indiana Co., post, p. 703; Public Service Comm’n v. Wisconsin Tel. Co., ante, p. 67. Finally, June 2, 1930, we promulgated the rule, 281 U.S. 773: “ In deciding suits in equity, including those re*328quired to be heard before three judges, the court of first instance shall find the facts specially anjd state separately its conclusions of law thereon; and its findings and conclusions shall be entered of record and, if an appeal is taken from the decree, shall be included by the clerk in the record which is certified to thé appellate court under rules 75 and 76.”
The command that the trial court “ shall find the facts specially” means at least that the statement shall be definite, concise and complete as distinguished from discursive, argumentativo, obscure or fragmentary. Tax Commissioners v. Jackson, supra, 533. The direction “ and state separately its conclusions -of law thereon ” shows that discussion of facts and law in1 the course of explanation, reasoning or opinion to clarify or support the conclusion or judgment réached, is not sufficient. The opinion filed in this case as a concurring one appears on .its face to have been prepared for adoption by and as the opinion of the court. It was not accepted by either of the other judges; in any event that opinion could not be considered á compliance with the rule, v The rule was intended to make unnecessary, analysis or extended examination for the ascertainment of the facts and propositions of law on which rest decrees of the courts of first instance. The opinion of the majority does not purport to “ find the facts specially” or to “state separately its conclusions of law thereon.”
The decree is not a compliance with the rule. “ The court now finds that the values for plaintiff’s property as fixed and determined by the defendant Railroad Commission are the reasonable values thereof; that the rates fixed are such as to render a reasonable return on such values and that said rates are therefore not confiscatory. And the court adopts, as representing its further findings, the opinion filed herein on April 8, 1932, as concurred in by the two district judges who participated in the hearing *329and decision hereof.” This is within the condemnation of our decisions. Railroad Commission v. Maxcy, supra; Tax Commissioners v. Jackson, supra; Public Service Comm’n v. Northern Indiana Co., supra.
Public Service Comm'n v. Wisconsin Tel. Co., supra, decided after the argument of this case, is of special interest. The commission appealed from an interlocutory decree declaring that enforcement of telephone rates prescribed by the commission would result in confiscation of the company’s property. The district court filed no opinion and made no special findings of fact. The company moved to affirm. The commission’s contention was that the decree should be reversed for lack of specification of the facts on which it rested. The company maintained that the. decree was abundantly sustained by the facts shown in the record. We held that Rule 70% does not apply to decisions on applications for temporary injunctions and made it clear that the duty of the court in passing on such applications was not altered by the adoption of the rule. We said {ante, p. 70): “ While an application for an interlocutory injunction does not involve a final determination of the merits, it does involve the exercise of a sound judicial discretion.' That discretion can be exercised only upon a determination, in the light of the issues and of the facts presented, whether the complainant has made, or has failed to make, such a showing of the gravity of his complaint as to warrant interlocutory relief: Thus, if the issue is confiscation, the complainant must make a factual showing of the probable confiscatory effect of the statute or order with such clarity and persuasiveness as to demonstrate the propriety in the interest of justice, and in order to prevent irreparable injury, of restraining the State’s action until hearing upon the merits can be had. ... the court should make the findings of fact and conclusions of law that are appropriate to the interlocutory proceeding.” And we refused, even when *330aided by adequate brief and argument of counsel, to consider whether the temporary injunction was warranted by the facts shown in the record.- We vacated the decree with costs against the utility and remanded the case for findings and conclusions appropriate to .a decision upon the application for an interlocutory injunction. And it is the purpose of this court to. promulgate a rule definitely requiring district courts to make special findings of fact in such cases.
The reasons for the enforcement of. such a rule are stronger where final judgment is entered. The work done for the court by the writer of the opinion should not be undertaken here. Our rules do not permit adequate opportunity for presentation of such cases as upon trial de novo. Nor is the time that the Justices can give to preparation for and in our conferences sufficient to enable them to reach reasonable conclusions in respect of the bases or details of calculations, revisions and determinations reflected by the elaborate opinion in this case.
We should follow Public Service Comm’n v. Wisconsin Tel. Co., vacate the decree and remand the case for special findings. The district court should appoint a special master to hear the parties, m.Jke specific findings of fact, and state separately his conclusions of law and recommendation for a decree.
The district court should have referred the case to a special master for such a report. Experience has made it plain that rate confiscation cases are intricate in respect of facts and involve complicated, grave and difficult questions that are impossible of adequate examination by a court without the assistance of a master. Dubourg de St. Colombe’s Heirs v. United States, 7 Pet. 625. The report of the commission in this case occupies 54 pages of the record and the opinions of the participating judges extend through more than 71 pages. That the burden of mere analysis, comparison or concordance is very great *331can be gathered from the opinion of this court. The lack of definite findings in respect of essential facts is obvious and it is likely that, if the district court had undertaken. separately to state its conclusions of . law, it would not have fallen into the errors sought to be corrected by the opinion here. Its decision was not announced until more than nine months after final submission of the case. This statement implies no adverse criticism, for it is often difficult for the judges, consistently with performance of their other duties, to give the time required for travel, full hearings, adequate conferences in advance,of decision and for preparation of draft opinions. The requirement that three judges shall participate undoubtedly increases the need for a special master.
Chicago, M. & St. P. Ry. Co. v. Tompkins, 176 U.S. 167, was a confiscation case involving the validity of state-made railroad rates. - The trial judge, without the aid of a master, examined the pleadings and proof, made findings of fact, stated his conclusions of law, delivered an opinion and rendered a decree dismissing, the bill. But he failed to find an essential fact, the cost of doing local business. This court remanded the case with instructions to refer it to a competent master. Speaking through Mr. Justice Brewer, it said (p. 179): “ 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 *332then 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, arid therefore the, aid of-the trial oourt should be had. . The writer of this opinion appre--. ciates the difficulties which attend, a trial court in a case like this. In Smyth v. Ames, supra, a similar case, he, as Circuit Judge presiding in the Circuit Court of Nebraska, ündertook the work of examining the testimony, making computations, and finding the facts: It was very laborious, and took several weeks. It was a work which really ought "to have been done by a. master . . . 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 sf case it is imperative that the most competent and reliable master, general 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.”
Lincoln Gas Co. v. Lincoln, 223 U.S. 349, involved the validity of- a city, ordinance regulating charges for gas. T!he court below failed to make findings of fact in respect of the sums annually required for depreciation and replacements. This court,. speaking through Mr. Justice Lurtón, said (p. 36Í): “ 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.” The case was remanded to the district •court with instructions tó refer it to a competent master With directions to report fully his findings upon all questions raised by either party, and with leave to both parties to take, additional evidence.
*333While the practice since Chicago, M. & St. P. Ry. Co. v. Tompkins has not been uniform, special masters have been appointed quite generally.3
To summarize:
1. There is no warrant for reversal here of the commission and district court in respect of unit prices upon which they built up their “ fair value ” figure. If business conditions since the commission made its order are deemed to affect that figure, we should remand with directions to the district court to find the facts. Atchison, T. & S. F. Ry. Co. v. United States, 284 U.S. 248, 260, 262.
2. This court should not undertake to ascertain the amount of overheads properly to be included. But, if that matter is to be considered here, the 22 per cent, included in the commission’s reproduction estimate and the company’s 24 per cent, should not be ignored but should be considered in connection with the 11.25 per cent, in-*334eluded in the original or historical cost figures. An appraisal of the item should be made on the basis of all the relevant facts.
3. There is ño warrant for this court’s elimination from the agreed inventory of standby plants which were included by the commission and district court.
4. There has been no appraisal of going value. That element was arbitrarily excluded below. There is no rational foundation for the amount attributed to it here.
. 5. As the commission’s refusal to apply principles of valuation established by our decisions resulted in arbitrary undervaluations, the prescribed rates should on that ground be set aside.
.6. The decree appealed from should be vacated and the. case reminded for compliance with Rule 70%.
7. The district court should refer the case to a special master to report in accordance with the practice, followed in cases such as this.
Mr. Justice Sutherland joins in this opinion. -The report (35 C.R.C. 443) in this case states' (p. 445): “ This Commission for many years, in the exercise of its jurisdiction to establish reasonable rates for utilities of this character, has fixed rates to yield upon the historical or actual cost of the property, taking land, however, at current values and depreciation calculated on a sinking
*322fund basis, a return somewhat in excess of the cost of the money invested in the property.” And Commissioner Decoto said (p. 474): “For thirty-two years the Supreme Court of the United States has consistently adhered to the controlling principles of valuation’ laid down by it. In spite of the fact that the pathway is now .made reasonably clear by the decisions of the "courts, some state commissions seem to be inclined to be a law unto themselves and persist in ignoring the law as laid down by the courts. The California Commission has to all outward appearance been one of these. It has clung ostensibly and theoretically to the historical rate base. In reality it has given effect to the different elements mentioned by the federal courts including fair value including going valu.e by allowing a rate return between 8 per cent, and 8% per cent, on historical cost if there be added to the historical rate base an amount between 10 per cent, and 12% per cent., the rate base so obtained will approximate fair value including going value. So, also if'there is deducted from Í0 per cent, to 12% per cent, from a rate of return of 8 per cent, or 8% per cent, on an historical cost rate base, it is readily seen that there is an actual return varying froni 7 per cent, to 7.75 per cent, upon fair value including therein a reasonable' amount for going value. With this arrangement our public utilities have been content. During the last two years this commission has shown a tendency to cut the rate return upon an historical rate base from between 8 per cent, and 8% per cent, to 7 per cent., which reduced the rate of return upon a fair value base to 6.12% per cent, and 6.3 per cent.. This is confiscation and not regulation.”
The president of the commission, October 21, 1931, in an address before the National Association of Railroad and Public Utilities Commissioners apparently in opposition to constitutional law as established by numerous decisions here, said: “It is safe to say that in practically none, if any of the cases in which there have been permanent injunctive orders,issued.by the federal courts, would actual confiscation have followed the Commission findings. This is stated not only from general knowledge of the facts but from specific knowledge of the experience in California. A study .’of the court opinions indicates beyond reasonable doubt that in practically every major rate case in the last seventeen years in that state the findings of the Commission could not have withstood the test imposed by the federal tribunals.” Report, Forty-third Annual. Convention, 1931, pp. 180, 190.
The court’s statement follows: “ The commission was very liberal in its treatment of certain items of property. The company-in its early operations furnished artificial gas. Since 1924 it-has served natural gas, which is plentiful in the numerous oil fields in Southern California. There is no evidence which discredits the commission’s conclusion that the supply of natural gas will be abundant and constant. The commission found in effect that at least two of the artificial gas manufacturing plants of plaintiff were no- longer needed and might well be retired. Nevertheless, it included them in its valuation as a live necessary part of the operative property. It appears that, had these plants been eliminated, the fair value base would have been reduced by approximately $3,000,000.” 58 F. (2d) 256, 259.
Knoxville v. Knoxville Water Co., 212 U.S. 1; Willcox v. Consolidated Gas Co., 212 U.S. 19, 24; Louisville v. Cumberland Tel. & Tel. Co., 225 U.S. 430; Minnesota Rate Cases, 230 U.S. 352; Des Moines Gas Co. v. Des Moines, 238 U.S. 153; Denver v. Denver Union Water Co., 246 U.S. 178; Newton v. Consolidated Gas Co., 258 U.S. 165; Galveston Elec. Co. v. Galveston, 258 U.S. 388; Houston v. Southwestern Tel. Co., 259 U.S. 318; Brush Elec. Co. v. Galveston, 262 U.S. 443; Pacific Gas Co. v. San Francisco, 265 U.S. 403; Railroad Comm’n v. Duluth St. Ry. Co., 273- U.S. 625; Denney v. Pacific Tel. & Tel. Co., 276 U.S. 97; Wabash Valley Elec. Co. v. Young, 287 U.S. 488. In Missouri Rate Cases, 230 U.S. 474, part of testimony was taken by master and part in open court.
None was appointed in: San Diego Land & Town Co. v. Jasper, 189 U.S. 439; Louisiana R.R. Comm’n v. Cumberland Tel. Co., 212 U.S. 414; Allen v. St. Louis, Iron Mt. & S. Ry., 230 U.S. 553. (At the urgent request of the parties, the court consented to try the case without the aid of a master. 187 Fed. 290, 294.) Darnell v. Edwards, 244 U.S. 564; McCardle v. Indianapolis Water Co., 272 U.S. 400; United Fuel Gas Co. v. R.R. Comm’n, 278 U.S. 300; Railroad Comm’n v. Los Angeles Ry. Corp., 280 U.S. 145; Smith v. Illinois Bell Tel. Co., 282 U.S. 133. (Assigned for the taking of testimony to one of the three judges. 38 F. (2d) 77, 79.)