(sitting by designation) dissenting.
I regret that I cannot agree with the majority. The Arkansas Power and Light Company admittedly is a “public utility” within the meaning of the Federal Power Act. It is also admittedly a “licensee” within the meaning of that Act.1 The Federal Power Commission is given explicit power and jurisdiction to require every licensee and every public utility to make, keep and preserve such accounts as the Commission may by rules and regulations prescribe as necessary or appropriate for the purposes of the administration of the Act, and is specifically authorized to prescribe a system of accounts to be kept by licensees and public utilities.2 It is expressly provided, however, “that nothing in this chapter shall relieve any public utility from keeping any accounts, memoranda, or records which such public utility may be required to keep by or under authority of the laws of any State.” 3
The. Power Company here has been required by the Department of Public' Utilities of the State of Arkansas to make and keep certain accounts in accordance with the laws of that State and regulations pursuant thereto. The Federal Power Commission has directed the Power Company to show cause why certain of its accounts should not be made to conform with certain recommendations made by members of the Commission’s staff, and fixed a hearing for that purpose. The recommendations are that the assets of the Power Company be shown at an “original cost” figure substantially less than the “prudent investment” or “fair value” figure which is required by the Department of Public Utilities of the State of Arkansas. In this situation, and before *835any hearing had been had before the Federal Power Commission, the Power Company filed this suit in the District Court against the Federal Power Commission and its members and the Department of Public Utilities of the State of Arkansas and its members, seeking injunctive relief .against the Federal Power Commission and a declaratory judgment to the effect that the Federal Power Commission has no authority under the Federal Power Act to require the Power Company to make and keep the accounts here involved. In the event it be determined that the Federal Power Commission has such authority, then the complaint seeks a declaratory judgment that the action of the Department of Public Utilities of the State of Arkansas is void as being repugnant to the Commerce Clause of the Constitution of the United States. Art. 1, § 8, cl. 3. The District Court, upon motion, dismissed the complaint, holding that it was without jurisdiction in the premises. From this action the Power Company appealed. The Department of Public Utilities of the State of Arkansas, which had voluntarily appeared in the court below, did not appeal, but the Attorney General of the State of Arkansas appeared as amicus curiae, supporting the position of the Power Company.4
It is, of course, not disputed that statutory provision is made for the judicial review of any final action by the Power Commission.5 It is insisted, however, that such statutory review is not adequate in the present situation in that the Power Company finds itself in a dilemma brought about by the contentions of the Arkansas Department and the Power Commission that each has exclusive control over the same accounts of the Power Company; that to obey one will result in penalties from the other, and furthermore that the Congress had no intention of giving such exclusive control to the Commission with respect to accounts of a public utility controlled by state authority. This is based upon the proviso in Section 301(a) of the Federal Power Act, which has been mentioned, that public utilities shall not be relieved from keeping accounts required under authority of the laws of any State read in connection with Section 201(a) of that Act.6 Stated somewhat differently, the contention is that the declaration of policy in 201(a) to the effect that the federal regulation was to extend only to those matters which are not subject to regulation by the States extends to and controls the power given to the Power Commission to control accounts. It seems to me rather late in the *836day for this to be urged as the basis for a District Court taking jurisdiction in a case where there is admittedly statutory provision for an administrative hearing with judicial review. In the first place, it has been repeatedly held that the language employed in Section 201(a), just mentioned, was intended as a limitation on the federal authority so that it would extend only to the generation, transmission and sale of electric energy, which was not subject to regulation by the State, and that such language was not intended to be a limitation upon the power of the Commission with respect to the corporate financial arrangements of the utilities engaged in such production and distribution. Such was held to be the law in Jersey Central Power & Light Co. v. Federal Power Commission, 319 U.S. 61, 74, 63 S.Ct. 953, 960, 87 L.Ed. 1258. In that case, the Court was concerned with Section 203(a).7
In the opinion, however, it is stated:
“This conclusion finds strong support in the fact that not only Section 203(a), here under discussion, but Sections 204(a), 16 U.S.C.A. § 824c(a), 208, 16 U.S.C.A. § 824g, and 301(a) regulate matters obviously subject to state regulation. If the scope of the limitation was as broad as petitioners contend, none of these sections just referred to would be effective. Section 203 (a) would be a nullity as of course the disposition and acquisition of facilities, merger, consolidation or purchase of securities by their utilities may be regulated by the States. But this does not follow where a specific limitation is placed on the issue of securities by section 204.”8 [Emphasis supplied.]
It has been held that Section 201(a) does not qualify Section 301(a) where the latter was directly involved. Northwestern Electric Co. v. Federal Power Commission, 9 Cir., 125 F.2d 882, 885. It is of striking significance that, where the Congress intended to limit the powers of the Commission with respect to corporate financial matters, which were controlled by state authority, it expressly made such limitation. Section 204(f).8
It is insisted, however, that the character of the accounts involved here are such as constitute what the Power Company terms as their “primary, dominant and principal books of account,” and which in the Court’s opinion are variously denominated “dominant, principal, primary and basic accounts” and as “official corporate accounts.” The postulate is that one authority, and only one, can control the keeping of such accounts, and that the exercise by one authority necessarily excludes the exercise of authority by the other. It is further asserted by the Power Company, and accepted in the Court’s opinion, that the Power Commission here is seeking to exercise its authority to the exclusion of the right of the Arkansas Department to require accounts involving the same subject matter and to control those so required. In so far as the accounts here involved are concerned, I cannot agree with either of these conclusions. The Federal Power Act nowhere recognizes any category of accounts as “primary, dominant and principal books of account” or “dominant, principal, primary and basic accounts” or “official corporate accounts,” nor does the Act expressly exempt such accounts from the authority of the Power Commission. It has been repeatedly determined that accounts of the character here involved of a *837“public utility” or “licensee” may be required and controlled by the Power Commission, and that notwithstanding accounts covering the same subject matter are required to be kept and controlled by a competent state authority on a different basis. In Northwestern Electric Co. et al. v. Federal Power Commission, 321 U.S. 119, 64 S.Ct. 451, 454, 88 L.Ed. 596, the Supreme Court affirmed Northwestern Electric Co. v. Federal Power Commission, 134 F.2d 740, decided by the Circuit Court of Appeals for the Ninth Circuit, in which it was held that the Power Commission had the authority to require and control accounts respecting the valuation of assets on a basis of “original cost” notwithstanding the sanction by a state authority of a different valuation on a “prudent investment” basis. Mr. Justice Roberts, speaking for the Court, stated in the opinion:
“Nothing in the statute or the order prevents Northwestern keeping other accounts if it so desires which will give information with regard to estimated present appreciated value of its assets.”
In Pacific Power & Light Company v. Federal Power Commission, 9 Cir., 141 F.2d 602, 605, respecting an order of the Power Commission fixing the valuation of the assets of the public utility there involved on an “original cost” basis, the Court pointed out that the order of the Power Commission does not prohibit the keeping of other accounts on a “present fair value” basis. In Louisville Gas & Electric Co. v. Federal Power Commission, 129 F.2d 126, 133, the Circuit Court of Appeals for the Sixth Circuit, dealing with a licensee, stated:
“Section 301 (a) of the 1935 Act provides that every licensee and public utility shall make, keep, and preserve for such periods such accounts, records of cost, accounting procedures, etc., as the Commission may, by rules and regulations, prescribe. Furthermore, the provision that nothing in the Act should relieve a public utility from keeping such accounts as are required by the laws of the state, impliedly, if not expressly, discloses a purpose that the Commission shall prescribe such accounting system, notwithstanding that the state has required a like or a different system of accounts.”
The authority of the Commission to require and regulate such accounts is recognized in various other jurisdictions.9 This Court expressly sanctioned the exercise of such authority over the accounts of a “licensee” in Alabama Power Co. v. Federal Power Commission, 75 U.S.App.D.C. 315, 320, 128 F.2d 280, 285, wherein it was stated:
“The language of the statute and the clearly stated powers and duties of the Commission leave no doubt that, while a division of authority between it and appropriate state agencies is contemplated, so far as concerns regulation, the Commission is vested with summary and unlimited powers over the accounts of its licensees to the extent necessary to insure proper performance of its duties. If the State, in the proper performance of its duties, wishes, to require the keeping of a separate set of books no doubt it can do so. And if the Company wishes to keep a third set ’for its own purposes there seems to be nothing in the law to prevent it from doing so. But two things are certain: (1) The statute clearly contemplates that the Commission may require the licensee to establish and maintain accounts; (2) the licensee must allow the Commission to have access to all accounts which it does keep.”
No case has been cited, nor have I been able to find one, which has held contrary to those supporting the authority and jurisdiction of the Power Commission to require and control accounts of the character here involved. The Power Company leans most heavily on the decision of the Supreme Court in Connecticut Light & Power Co. v. Federal Power Commission, 324 U.S. 515, 65 S.Ct. 749, 89 L.Ed. 1150, but in that case the question was whether or not the Connecticut Light and Power Company *838was a public utility within the meaning of the Federal Power Act, and, therefore, whether or not the Federal Power Commission had any authority or jurisdiction respecting any accounts of the Connecticut Company. It was there decided that this Court proceeded upon an erroneous interpretation of Section 20110 in affirming an order of the Power Commission which determined the Connecticut Company to be a public utility. It was, therefore, considered doubtful that the Power Commission had applied the correct law with the result that the judgment of this Court was reversed, and it was directed that the cause be remanded to the Federal Power Commission for determination of the jurisdictional facts in accordance with the law as stated in the Court’s opinion. Certainly there is no support for the Power Company’s position here to be found in the Connecticut Company case. The significant thing about the action in that case, in so far as it is relevant here, is that the Supreme Court considered it necessary and proper for the jurisdictional facts to be determined by the Federal Power Commission.
I do not share the view expressed by the Court ‘that facts are alleged in the complaint which show that the Power Commission has done, or threatens to do, anything which interferes with the clear right of the Department of Public Utilities of the State of Arkansas to require the Power Company to establish and maintain accounts such as that Department requires, and to control such accounts so established. The conclusion that the Power Commission does so threaten is based upon certain language in the Power Commission’s motion to dismiss the complaint:
“No claim is stated upon which relief can be granted, since the Commission’s accounting authority with respect to ‘public, utilities,’ including plaintiff, is not affected by any accounting requirements prescribed under state laws.”
The construction I put upon this language is that the Power Commission is asserting what the numerous authorities have said it had the right to do, namely, to require the Power Company to keep such accounts entirely independent of and unaffected by any state requirements. I do not construe such language to be an assertion that the Power Company shall not keep accounts required of it by the state authority and in strict compliance with such state regulation and control. Such assertion would be in clear violation of the plain language of the Act. Should the Power Commission take any action which would interfere with the authority of the State, or any of its agencies, respecting accounts or any proper regulation of the Power Company, I am confident that upon review in this Court the Power Commission would be stopped in such unlawful action before it became effective.
For the reasons I have stated, I am convinced that there is a full and adequate remedy, with statutory judicial review, which must be followed, and that recourse to the District Court cannot be had in lieu thereof. I can, therefore, see no reason why this case should not be disposed of upon the principle decided in the case of Myers, et al. v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638. It has been urged that the Myers case could be distinguished from the instant case because of the explicit language in the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., not found in the Federal Power Act. What lingering doubt that the Myers case had application to administrative agencies other than the National Labor Relations Board has certainly been dispelled by the recent case of Macauley, et al. v. Waterman Steamship Corporation, 327 U.S. —, 66 S.Ct. 712. In that case there was much stronger basis than here for the contention that the District Court could take jurisdiction, because the contracts which were sought to be renegotiated by the Maritime Commission were between the steamship corporation and the British Ministry of War Transport, and not in terms between the steamship corporation and the Maritime Commission. The state of the law is even clearer now than it was when this Court, in Miles Laboratories v. Federal Trade Commission, 78 U.S.App.D.C. 326, 328; 140 F.2d 683, 685, speaking through Chief Justice Groner, said:
*839“On no subject is the opinion of that Court [Supreme Court], as I view it, more definitely fixed than it is on the lack of power of the courts to inject themselves or be injected into proceedings which Congress has committed to the primary jurisdiction of administrative agencies.”
In the view here expressed, I do not consider that the District Court had jurisdiction to oust or interfere with the jurisdiction of the Federal Power Commission, and, therefore, I am of the opinion that its action in dismissing the complaint should be affirmed.
Exhibit 8 to complaint, par. 3, sec. 2. “The respondent [Arkansas Power and Light Company] also owns and operates two hydroelectric projects licensed under the Federal Water Power Act of 1920 [16 U.S.O.A. § 791 et seq.].”
Sec. 301(a), Federal Power Act, 16 U.S.C.A. § 825 (a).
Id.
Subsequent to the order of the District Court dismissing the complaint, the Department of Public Utilities of the State of Arkansas, the name of which has been changed to Arkansas Public Service Commission, and its members, and the State of Arkansas have intervened in the proceedings pending before the Federal Power Commission. Appendix, appellee’s brief, pp. 40-41.
Sec. 313 (a), Federal Power Act, 16 U.S.C.A. § 825l (a). “Any person, State, municipality, or State commission aggrieved by an order issued by the Commission in a proceeding under this chapter to which such person, State, municipality, , or State commission is a party may apply for a rehearing within thirty days after the issuance of such order. * * * No proceeding to review any order of the Commission shall be brought by any person unless such person shall have made application to the Commission for a rehearing thereon.
“(b) Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the Circuit Court of Appeals of the United States for any circuit wherein the licensee or public utility to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or sot aside in whole or in part. * * *”
16 U.S.C.A. § 824 (a). “It is hereby declared that the business of transmitting and selling electric energy for ultimate distribution to the public is affected with a public interest, and that Federal regulation of matters relating to generation to the extent provided in sections 824-825r of this title and of that part of such business which consists of the transmission of electric energy in interstate commerce and the sale of such energy at wholesale in interstate commerce is necessary in the public interest, such Federal regulation, however, to extend only to those matters which are not subject to regulation by the States."
16 U.S.C.A. § 824b (a). “No public utility shall sell, lease, or otherwise dispose of the whole of its facilities subject to the jurisdiction of the Commission, or any part thereof of a value in excess of $50,000, or by any means whatsoever, directly or indirectly, merge or consolidate such facilities or any part thereof with those of any other person, or purchase, acquire, or take any security of any other public utility, without first having secured an order of the Commission authorizing it to do so. * * *”
16 U.S.C.A. § 824c (a). “No public utility shall issue any security, or assume any obligation or liability as- guarantor, indorser, surety, or otherwise in respect of any security of another person, unless and until, and then only to the extent that, upon application by the public utility, the Commission by order authorizes such issue or assumption of liability. * * *
“(f) The, provisions of this section shall not extend to a public utility organized and operating in a State under the laws of which its security issues are regulated by a State commission.”
Northern States Power Co. v. Federal Power Commission, 7 Cir., 118 F.2d 141; Niagara Falls Power Co. v. Federal Power Commission, 2 Cir., 137 F.2d 787; Pennsylvania Power & light Co. v. Federal Power Commission, 3 Cir., 139 F.2d 445; California Oregon Power Co. v. Federal Power Commission, 9 Cir., 150 F.2d 25.
16 U.S.C.A. § 824.