Memorandum on Petition for Rehearing
The application for submission of the petition for rehearing to the entire bench is denied. We recently held “that in cases where the appeal was heard, anti the judgment or order complained of was decided by a regular Court consisting of three judges only, a petition to rehear or to consider should not be considered by the Court en banc.” N.L.R.B. v. Cam-bria Clay Products Co., 12072, order entered August 12, 1955; Northwest Air Lines, Inc., et al. v. Glenn L. Martin Co., 12130, order entered October 8, 1955.
In the petition for rehearing filed by Panhandle many contentions advanced by Panhandle at the hearing are reiterated. Each of these contentions was given extensive consideration and they will not be discussed here. We adhere to our position that Section 5 of the Natural Gas Act, 15 U.S.C. § 717d(a), 15 U.S.C.A. § 717 d(a), governs these proceedings and that in the absence of the findings required under that paragraph Gd-1 Applicable (c). has no force or effect. This disposes in this court of Counts I, II, III, and V of Panhandle’s complaint, and subsidiary questions as to these Counts need not be debated. Neither Mobile Gas Service Corporation v. Federal Power Commission, 3 Cir., 215 F.2d 883 nor Tyler Gas Service Co. v. *73United Gas Pipe Line Co., 5 Cir., 217 F.2d 73, involves our precise question and they have no direct bearing.
With reference to Counts IV and VI Panhandle again contends that it is not liable. It says that it was entitled under the Commission’s order of July 17, 1948, to decide in its discretion how much gas it would distribute to Gas Storage and Consolidated. It adheres to the position stated in its main brief at the hearing that, after it had delivered to The Ohio Fuel Gas Company, to East Ohio Gas Company, and to its customers east of Edgerton other than Consolidated and Gas Storage the various amounts required by the order, when it divided the balance of gas passing through Edgerton station between Consolidated and Gas Storage in the proper percentages, it had complied with its obligations under the order of July 17, 1948. Panhandle did not say at the hearing, it does not now say in the petition for rehearing, that it delivered gas up to the physical capacity of the Edgerton station. It relies on the fact that the Commission refused an application of the Michigan Public Service Commission to include in its order of July 17, 1948, a provision specifically discontinuing deliveries to Panhandle’s in-terruptible customers. However, the Commission in Opinion 166, which accompanied and laid the basis for the orders of even date therewith, namely, July 17, 1948, declared that the contracts between Panhandle and Gas Storage and between Panhandle and Consolidated were firm contracts and assumed that in its operation Panhandle would give to the deliveries under such firm contracts “the degree of priority appropriate thereto * * *.” (Opinion 166, 216 a). It found that “during the present storage season Panhandle’s delivery capacity on its system east of Edgerton, after deliveries to its other customers in that area, should then be made available to Consolidated and Gas Storage” in the percentages previously quoted in the opinion. (Opinion 166, 206a). It stated that “a dominant, if not controlling, factor with respect to the supply of gas available from Panhandle’s system east of the Edgerton station is the physical capacity of that compressor station.” (Opinion 166, 216a). We are cited to no statement of the Commission which indicates that Panhandle was given a discretion as to how much gas should pass through Edgerton. While the Commission did not determine the physical capacity of Edgerton, it found that it was greater than Panhandle’s witness testified. The amounts to be delivered were not definite but the measurement was definite. It was to be up to the physical capacity of the station. In light of all the discussion bearing on this point in Opinion 166, we construe the phrase “physical capacity” as meaning the full capacity of the station.
The decision of the Southern District Court of Illinois in Federal Power Commission v. Illinois Power Company and Illinois Commerce Commission, entered October 18, 1948, does not affect our conclusion. While the court stated that Panhandle in its discretion should determine initially when curtailments in in-terruptible service should be made and the manner and extent thereof, this finding was qualified by the holding that this was “subject to the provisions of the Natural Gas Act and the rules, regulations and orders of the Commission” issued thereunder. (278a, paragraph 15).
Panhandle objects to the opinion because it states as to Counts IV and VI that the deficiencies sued for are “admitted.” This statement is correct. Panhandle does not assert that it delivered up to the full capacity of Edger-ton station as was ordered by the Commission July 17, 1948. Since the order was to deliver to the full capacity of the station and Panhandle’s own records show that this was not done, the deficiencies are admitted.
No evidence of damage was introduced by Consolidated under the counterclaim because it had been dismissed at the time of trial. Panhandle’s contention that the reversal of judgment as to the counterclaim is incorrect because the gas *74claimed to have been manufactured was manufactured after the period of deficiency deliveries had ended, has no merit. Under the Commission’s Opinion 166 Consolidated was specifically authorized to receive and store gas for winter requirements. (201a). The gas received and stored, if insufficient to meet demands of the winter, could be compensated for under Paragraph 4 of Article XVIII of the contract.
The petition for rehearing is denied.