Securities & Exchange Commission v. New England Electric System

Mr. Justice Harlan, whom Mr. Justice Stewart joins,

dissenting.

The question before the Court is the meaning of the phrase “loss of substantial economies” as it appears in § 11 (b)(1) of the Public Utility Holding Company Act of 1935.1 The Court of Appeals ruled that the phrase *186“called for a business judgment of what would be a significant loss,” 346 F. 2d, at 406, and I agree with this rendering which is both sensible and, in my view, obvious. This Court’s opinion on the other hand seems to hold that the phrase demands a loss great enough to imperil “sound” corporate operations.2 That holding, as I shall indicate, is at odds with the Act’s wording, has little basis in legitimate statutory history or the aims of the Act, and cannot be sustained by agency or judicial precedent.

Inquiry naturally begins with the language of the Act, and with our reiterated principle that “the words of statutes . . . should be interpreted where possible in their ordinary, everyday senses.” Crane v. Commissioner, 331 U. S. 1, 6; Malat v. Riddell, 383 U. S. 569, 571. In this instance plainly the normal meaning of “substantial economies” is a significant amount of money and not that amount, whatever its size, which guarantees corporate survival. The first reading would be given by lawyers and laymen alike automatically while the second could hardly be imagined without the prompting of persuasive legislative evidence. If Congress had intended the Court’s test to govern, it qould easily have said so in *187shorter space and with far greater precision.3 In addition, the Court’s decision will apparently result in “substantial economies” being read its way in § 11 (b)(1) but in a quite different, more normal fashion where the same phrase appears in § 2 (a)(29)(B), defining an integrated gas utility system (see ante, n. 4, of the Court’s opinion). None of this is to say that the many subtle choices to be made in deciding what is a substantial sum in the present context are dictated by the terse language of the Act. See infra, n. 11. The choice here, however, is between two broad approaches, and the Act’s language invites the first and repels the second.

If the natural reading produced some strange or arbitrary result there might be reason to hesitate; but in this case the literal reading makes excellent sense in serving the very rational and desirable end of financial economy. The Congress that passed the Act had been importantly concerned with the “intensification of economic power beyond the point of proved economies . . . .” H. R. Doc. No. 137, 74th Cong., 1st Sess., 4; see §§ 1 (b)(4), (5) of the Act, 15 U. S. C. §§ 79a (b)(4), (5) (1964 ed.) (policy statement), and the Act itself bristles with provisions aimed largely at attaining efficient management and operations. See §§ 7 (d)(3), 10 (c)(2), 12 (d), (f), (g), 13, 15 U. S. C. §§79g (d)(3), 79j (c)(2), 791(d), (f), (g), 79m (1964 ed.). With this background, nothing could be more plausible than to curtail divestiture at the point where the prospect of substantial losses removed a prime reason for having divestiture at all. There are to be sure other dangers in proliferated growth besides disecon-*188omy, dangers which played their part in the passage of the Act, but there are also other clauses of § 11 (b)(1) whose conditions must be met before the exception is allowed (see supra, n. 1). In sum, it seems clear enough that the burden of persuasion rests upon those who would displace the Court of Appeals’ interpretation.4

Legislative history and purpose, heavily relied on by the Court, furnish no reason for departing from the natural reading of the Act. There was very little direct explanation of the “substantial economies” provision in Congress; the majority opinion sets out in full the two important statements, one by the House Conference Committee (ante, pp. 180-181) and the other by Senator Wheeler (ante, p. 181).5 The Committee Report, highly authoritative but unilluminating, says merely that there must be “a real economic need” to justify retention of an additional system. Indisputably, substantial savings can be labeled a real economic need, the more so since Congress was sharply concerned with the lack of economic justification for many utility combinations. That the Committee’s language is also compatible with the SEC’s reading of “substantial economies” does no more than make that language a useless guidepost.

Senator Wheeler’s statement, by contrast, does support, if indeed it is not the source of, the SEC interpretation, and normally the view of a principal sponsor of *189an Act carries heavy weight. Here, however, Senator Wheeler made his remarks after the bill had finally passed both Houses, and quite arguably “[t]he views of individual members of the legislature as to the meaning of a statute which were not officially communicated to the legislature prior to its enactment are not competent to be considered in determining the meaning which ought to be attributed to the statute.” Hart & Sacks, The Legal Process 1285 (tent. ed. 1958, Harvard Univ.). Moreover, in this instance Senator Wheeler had been a fierce opponent of allowing any exception at all to the one-system principle, see 346 F. 2d, at 403, and had excellent reason to minimize severely the scope of the present provision when to do so could no longer cost the Act votes. The SEC itself in its early days, before the elevation of the Wheeler statement to its present exaggerated importance, took a far more guarded view of its worth.6

To support its construction of the “substantial economies” provision, the Court also relies on two general policies attributed to the Act as a whole. It is initially emphasized that the Act’s overriding aim was to confine holding companies to a single integrated system while control of additional systems was to be “decidedly the exception” (ante, p. 180). The mild but misleading inference is that the “exception” is some minor, little noticed addendum, to be strictly construed. In truth, the original, more stringent version of § 11, popularly known as *190the “death sentence” provision, was bitterly opposed and the “ABC” clauses exception with Clause A of which we now deal (supra, n. 1) was adopted as a considered compromise between quite different House and Senate versions. See Ritchie, Integration of Public Utility Holding Companies 16-19, 151 (1954). The ABC clauses represent part of the price openly paid for enactment, and there is no basis in these events for a grudging interpretation.7

Far more weight is given by the Court’s opinion to the Act’s supposed hostility toward common control of gas and electric utility systems with its danger of stifled competition. First of all, this hostility appears to be an illusion. The House and Senate Committees in identical language expressly stated that common ownership of competing forms of energy was “a field which is essentially a question of State policy”; the present § 8, 15 U. S. C. § 79h (1964 ed.), was enacted to support this approach by using federal power to limit common ownership only where it is contrary to state law. See S. Rep. No. 621, 74th Cong., 1st Sess., 29-30; H. R. Rep. No. 1318, 74th Cong., 1st Sess., 14-15.8 In its decision in this *191very case the SEC stated: “We do not take the view that the Act expresses a federal policy against combined gas and electric operations as such.” Holding Company Act Release No. 15035, p. 15. This was apparently so clear at the time the Act passed that in an early and now-repudiated decision the SEC went so far as to hold that gas and electric companies could be combined in the same single integrated public utility system. American Water Works & Elec. Co., 2 S. E. C. 972 (1937).

Furthermore, a constricted reading of the “substantial economies” provision is a quite unsuitable way of responding to the dangers in common ownership of competing types of utilities. The provision is equally intended to govern common control of two or more gas systems or two or more electric systems and, at least in the abstract, the Court’s reading will hinder those arrangements as well though its rationale is irrelevant to them. If the SEC is prepared to show that freeing a gas system from control by an electric system will improve earnings by some amount, then this may be a legitimate offset to the losses that can be shown, and there is leeway for rough calculations and for estimates based on studying past separations. See Ritchie, Integration of Public Utility Holding Companies 143-147 (1954). But to dispense with proof and disregard the basic test of “substantial economies” is to undo Congress’ own careful compromise of the various conflicting policy interests.9

*192There remains to be answered only the Court’s claim that its reading of the statute is “supported by consistent administrative practice” (ante, p. 182, n. 12). Analysis of the SEC decisions shows that the Court is mistaken. The first important construction of “substantial economies” came in North American Co., 11 S. E. C. 194, decided in 1942 only seven years after the Act took effect. Rejecting the assertion that any saving beyond a wholly nominal one would do, the SEC stated: “The normal and usual meaning of the word ‘substantial’ is a meaning connoting ‘important.’ And we think that this normal and usual meaning is compelled here.” Id., at 209. At least four subsequent decisions cite North American and adopt its “importance” test, a natural reading of the Act rather than the unusual and specialized one adopted today. Cities Serv. Power & Light Co., 14 S. E. C. 28, 37 (1943); Middle West Corp., 15 S. E. C. 309, 319 (1944); Cities Serv. Co., 15 S. E. C. 962, 984 (1944); American Gas & Elec. Co., 21 S. E. C. 575, 597 (1945). Also during this first decade of the Act’s enforcement two decisions, including one just cited, said that inability to operate independently was “one of the guides which (among others) Congress intended to be used . . . .” Cities Serv. Power & Light Co., 14 S. E. C. 28, 62 (1943); Commonwealth & Southern Corp., 26 S. E. C. 464, 489 (1947). In one other case the SEC stated the loss must be one which would “seriously impair . . . effective operations.” Engineers Pub. Serv. Co., 12 S. E. C. 41, 61 (1942).

*193The majority opinion says that the respondent “concedes” that the Commission has since 1948 articulated its present test, and three SEC decisions are then cited (ante, p. 182, n. 12). But with the Engineers case just cited as a possible addition, these are the only three decisions until the present one to state the Court’s test out of the 15 or more decisions applying § 11 (b)(1), taking the ones already mentioned with those that established no test. Furthermore, the respondent asserts that the three SEC decisions stating its present test involved a very small percentage of the assets it has ordered divested, and even in those three cases it is not clear that the test was determinative. Brief, pp. 47-48. In sum, whether or not the SEC’s early decisions may be said actually to refute the test now urged, certainly there is no consistent administrative practice lending it any real weight. Before leaving precedent, it should also be noted that the First and Fifth Circuits have squarely rejected the SEC’s present interpretation and that the Second Circuit has approved its “importance” gloss, while only the District of Columbia Circuit has upheld the present reading.10

To conclude, I think it should be noted that the Court’s departure from the statute is not just an abstract legal error but does immediate, tangible harm in a most practical sense. The annual losses which respondent has forecast for its gas system because of separation exceed *194$1,000,000, a figure the SEC has questioned in part but not yet properly considered. The respondent’s analysis also shows annual losses of $800,000 for the electrical system, although the SEC deems irrelevant losses to the primary system and the Court of Appeals did not reach this issue. The heavy losses in this case will presumably be borne by investors and consumers if the figures are accurate and separation occurs; it is noteworthy that the Massachusetts Department of Public Utilities appeared at the hearings in this case to oppose divestiture. The SEC has wide latitude in deciding how to gauge and compute “substantial economies” and it has used that freedom in the past.11 What the Commission has no right to do, however, is to substitute to the detriment of business interests and the public alike a quite different standard for the one enacted by Congress. Neither does this Court have that right. I would affirm the Court of Appeals’ well considered decision.

49 Stat. 820, 15 U. S. C. § 79k (b) (1). This subsection provides that a holding company shall be limited to “a single integrated public-utility system,” provided that the Commission shall permit control of additional systems if:

“(A) Each of such additional systems cannot be operated as an independent system without the loss of substantial economies which *186can be secured by the retention of control by such holding company of such system;
“(B) All of such additional systems are located in one State, or in adjoining States, or in a contiguous foreign country; and
“(C) The continued combination of such systems under the control of such holding company is not so large (considering the state of the art and the area or region affected) as to impair the advantages of localized management, efficient operation, or the effectiveness of regulation.”

I say “seems” to hold both because two statements in the opinion (ante, pp. 179, 184-185) emphasize a supposed offsetting economic saving to be found in divestiture and because the SEC has stated the test in this case in varying terms.

This could in fact have been accomplished simply by chopping off the last half of the present, controlling clause {supra, n. 1), leaving the condition to read “[e]ach of such additional systems cannot be operated as an independent system” and omitting wholly the qualifying language which begins “without the loss of substantial economies.”

“It . . . [is] wrong to deny the natural meaning of language its proper primacy; like Cardozo’s ‘Method of Philosophy,,’ it ‘is the heir presumptive. A pretender to the title will have to fight his way.’ ” Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Felix Frankfurter: The Judge 40 (1964).

One other legislative comment on the provision favors the Commission, 79 Cong. Rec. 14165-14166 (remarks of Mr. Cooper), but the Court of Appeals properly disregarded it as an opponent’s attempt to blacken the Act, cf. Labor Board v. Fruit Packers, 377 U. S. 58, 66, and the SEC no longer relies upon it in its brief.

The statement was quoted as cumulative, minor evidence on another matter in 1941, the SEC admitting that it “may not strictly be considered part of the legislative history” but saying it deserved “some consideration.” Engineers Pub. Serv. Co., 9 S. E. C. 764, 782-783. In 1942, it was quoted as bearing on the present question but its test was not adopted. North American Co., 11 S. E. C. 194, 209. The following year the statement was thought to reveal “one” of the various criteria to be used along with others. Cities Serv. Power & Light Co., 14 S. E. C. 28, 62.

For its “decidedly the exception” characterization, the Court cites (ante, p. 180, n. 9) North American Co. v. SEC, 327 U. S. 686. That decision imparted no such gloss to the ABC clauses but gave a most cursorv summarv in passing on the constitutionality of §11 (b)(1).

The Court’s opinion (ante, p. 184, n. 14) quotes from p. 7 of the above-cited Senate report, borrowing from it language that suggests § 11 was forwarding the same policy as § 8. What the Court overlooks is that this discussion was directed to an earlier and very different version of § 8, in which it also embodied other restrictions on holding company ownership having nothing to do with common control of gas and electricity but closely related to § ll’s policy of federally imposed simplification. A reading of the Court’s quotation in context along with the relevant version of S. 2796, 74th Cong., 1st Sess., §§ 8, 11 (as reported on May 13, 1935), will quickly show that its reliance is misplaced. The majority’s other citations *191in the same footnote are also infirm. The first two citations are statements on behalf of the rule that is now § 8, which allows the States to decide the issue. The remaining citation to the Senate Hearings does indeed reveal one Senator’s general concern with common ownership’s impact on competition; the respondent states it is “the only such reference in the entire Senate hearing.” Brief, p. 37, n. 45.

It should again be remembered also that the present provision is not the only legislative safeguard. Even to obtain ownership over two systems, a holding company must, along with proving “substan*192tial economies,” show that there is geographical unity and that the combination is not so large as to impair “the advantages of localized management, efficient operation, or the effectiveness of regulation” {supra, n. 1). Section 8 {supra, p. 190) acts as a further restraint in some cases. Other sections of the Act regulate transactions between utility companies and require disclosure of reports and maintenance of accounting data and other records. §§ 12(f), 13(a), 14, 15, 15 U. S. C. §§791 (f), 79m (a), 79n, 79o (1964 ed.).

The Fifth Circuit case is Louisiana Pub. Serv. Comm’n v. SEC, 235 F. 2d 167. It was reversed here on jurisdictional grounds, 353 U. S. 368, which does not of course impair its statement on the merits. The Second Circuit decision is North American Co. v. SEC, 133 F. 2d 148, aff’d on constitutional questions, 327 U. S. 686. The District of Columbia decision is Philadelphia Co. v. SEC, 85 U. S. App. D. C. 327, 177 F. 2d 720; that court thought it was following its earlier two-to-one decision in Engineers Pub. Serv. Co. v. SEC, 78 U. S. App. D. C. 199, 138 F. 2d 936, cert. granted, 322 U. S. 723, vacated as moot, 332 U. S. 788, but Engineers is ambiguous.

Among examples — and I do not mean to approve or disapprove the ones I cite — are SEC rulings that as noted it will not consider losses to the principal system, General Pub. Utils. Corp., 32 S. E. C. 807, 838-839 (1951); that it will not consider tax losses as a very significant factor, Cities Serv. Co., 15 S. E. C. 962, 985 (1944); that it will give only limited weight to capital costs of divestiture, Eastern Utils. Associates, 31 S. E. C. 329, 349 (1950); and that it will offset predicted gains resulting from separation against the losses, North American Co., 18 S. E. C. 611 (1945).