(concurring in part and dissenting in part).
In dissenting from the order entered by the majority March 29, 1954,1 which enjoined Capital Transit Company from redeeming its outstanding bonds and from paying the quarterly dividend of $384,000 declared February 25, 1954, I expressed the opinion that the Commission had simply failed to make out a case for a preliminary injunction as to the redemption of the bonds or the payment of the dividend. Being still of that view, I concur with the action of the majority in affirming the District Court’s refusal to enjoin the redemption of the bonds.
But, for the reasons expressed in my former dissenting opinion, I dissent from the majority’s action in enjoining the payment of the quarterly dividend of forty cents a share. The record shows, I think, that such payment will not impair the utility’s capital nor its ability to furnish adequate service. In those circumstances the Commission does not have statutory authority to forbid the payment of a dividend from earned surplus, nor do I think the court is justified in forbidding the payment.
APPENDIX
On Appellant’s Motion for Injunction Pending Appeal • Decided March 29, 1954
ORDER
PER CURIAM.This cause came on to be heard on appellant’s motion for an injunction pending appeal and was argued by counsel.
It appearing to the Court that immediate termination of the presently existing stay (1) would effectively prevent the Public Utilities Commission from proceeding with the investigation which it authorized on February 26, 1954, by its Order No. 4060, into the adequacy of Capital Transit Company’s reserves for depreciation, and related matters stated in the Order, insofar as the results of the investigation might be pertinent to this litigation, and (2) might render this entire appeal moot; it is
ORDERED by the Court that until April 26, 1954* (1) appellee Capital Transit Company, its officers, agents, and attorneys be, and they are hereby, enjoined from paying the quarterly dividend of $384,000 declared February 25, 1954, and (2) appellees Capital Transit Company and Union Trust Company of the District of Columbia, their officers, agents, and attorneys be, and they are hereby, enjoined from taking any action to publish notices of intention of Capital Transit Company to redeem bonds issued under its indenture dated December 1, 1944, and from redeeming the bonds; and it is
FURTHER ORDERED that the Court requests the Commission to file a report with the Court on or before April 19, 1954, of whatever facts the Commission has ascertained, by its investigation under Order No. 4060 or otherwise, which bear upon the question whether Capital Transit Company may legally redeem the said bonds or pay the said dividend; and the Court requests the appellees to reply to such report as early as possible.
Circuit Judge WILBUR K. MILLER dissents from the foregoing order for the reasons indicated in his memorandum this day filed herein.
. My opinion dissenting from the order appears in the Appendix hereto, beginning at p. 17 [94 U.S.App.D.C.---, 214 F.2d
Extended by order of April 22, 1954, to May 7, 1954.