Denney v. Pacific Telephone & Telegraph Company/Opinion of the Court

It will be convenient to dispose of these causes by one opinion as was done in the court below. Pacific Tel. & Tel. Co. v. Whitcomb et al. (D. C.) 12 F.(2d) 279.

Appellees operate telephone plants in Seattle, Tacoma, and Spokane, Wash., under local franchises which designated maximum permissible rates. These were granted prior to 1911, but after adoption of the present Constitution of the state.

The 'Public Service Commission Law' of Washington (chapter 117, Laws 1911; Remington's Comp. Stat. 1922, §§ 10339-10441), authorized a public service commission and directed that telephone rates, tolls, contracts and charges 'shall be fair, just, reasonable and sufficient.' etc. It further provided-

'Sec. 43 (Remington's Comp. Stat. 1922, § 10379).-Nothing in     this act shall be construed to prevent any telegraph company      or telephone company from continuing to furnish the use of      its line, equipment or service under any contract or      contracts in force at the date this act takes effect or upon      the taking effect of any schedule or schedules of rates      subsequently filed with the commission, as herein provided,      at the rates fixed in such contract or contracts: Provided,      however, that the commission shall have power, in its      discretion, to direct by order that such contract or      contracts shall be terminated by the telephone company or      telegraph company party thereto, and thereupon such contract      or contracts shall be terminated by such telephone company or      telegraph company as and when directed by such order.'

'Sec. 55 (Remington's Comp. Stat. 1922, § 10391).-Whenever     the commission shall find, after a hearing had upon its own      motion or upon complaint, that the rates, charges, tolls or      rentals demanded, exacted, charged or collected by any      telegraph company or telephone company *  *  * are unjust,      unreasonable, unjustly discriminatory or unduly preferential,      or in any wise in violation of law, or that such rates,      charges, tolls or rentals are insufficient to yield      reasonable compensation for the service rendered, the      commission shall determine the just and reasonable rates,      charges, tolls or rentals to be thereafter observed and in      force, and fix the same by order as hereinafter provided. * *      * '

Chapter 7, Laws of 1921, vested in the Department of Public Works powers theretofore intrusted to the commission.

Control of the telephone systems owned by appellees was assumed by the Postmaster General August 1, 1918, and retained for one year. He fixed rates for Seattle, Tacoma, and Spokane higher than the maximum rates permitted by the original franchises.

The Act of July 11, 1919 (41 Stat. c. 10, p. 157) repealed the Act of July 16, 1918 (40 Stat. 904)-which authorized federal control of telephone systems-and directed that rates established by the Postmaster General should continue for four months after the termination of federal control (July 31, 1919), unless sooner modified or changed by public authorities.

August 8, 1919, the Public Service Commission directed appellees to observe the rates established by the Postmaster General; and they continued so to do. January, 1922, the Department of Public Works by formal complaint challenged the reasonableness of these rates. In the autumn of 1922 appellees files schedules of proposed increased rates which were suspended. Extended hearings were had concerning the value of properties devoted to the service and the reasonableness of the rates proposed. The department found and declared the value of the properties; also 'that the existing rates are just, fair, reasonable, and sufficient; that the proposed increased rates, both toll and exchange, are unjust, unfair, unreasonable, and more than sufficient.' And on March 31, 1923, it ordered 'that the applications of respondents for increased rates be and the same are hereby denied; that the proposed increased rates in their entirety be and they are hereby permanently suspended; that the same shall not become effective, and existing rates shall remain in effect until the further order of the department.'

Shortly thereafter appellees began these proceedings in the United States District Court. They attacked the valuations by the department and alleged that the rates designated by the order of March 31, 1923, were confiscatory. The matter went to a master and was heard upon his report, etc. The court approved the master's conclusions that the department's valuations were too low and the prescribed rates were confiscatory. It accordingly adjudged the challenged order void and without effect.

The causes are here by direct appeal. The valuations approved by the court are not questioned; nor is it now claimed that the rates prescribed by the departmental order would yield adequate returns. But it is said that these rates must be regarded as contractual franchise rates and therefore they cannot be confiscatory in a constitutional sense.

Appellants maintain that under the statutes of Washington when the department terminates a franchise rate and prescribes another the result is 'simply to terminate one rate and substitute therefor a new rate, and that, after such substitution has been made, there still continues a franchise contract between the company and the city, which cannot be again changed except by the discretion of the department, and that the refusal of the department to exercise that discretion raises no question of confiscation.' Here, it is asserted, the department merely refused to change existing approved rates which were higher than the maxima originally specified in the granted franchises.

The powers and duties of the Department of Public Works and the effect of its orders must be ascertained upon a consideration of the local Constitution and statutes, and the construction placed upon them by the state courts. Georgia Ry. Co. v. Decatur, 262 U.S. 432, 437, 43 S.C.t. 613, 67 L. Ed. 1065; Southern Iowa Electric Co. v. Chariton, 255 U.S. 539, 41 S.C.t. 400, 65 L. Ed. 764.

The Public Service Law authorizes investigation of existing rates and expressly directs that whenever after a hearing they are found to be unjust or insufficient to yield reasonable compensation the department shall determine what will be just and reasonable ones thereafter to be observed and fix the same by order. The order of March 31, 1923, in effect declared the rates then being observed just and sufficient to yield reasonable compensation. It expressly commanded their future observance and was sufficient to terminate the provisions of the franchises as to maximum rates, within the purview of section 55, supra.

The department made its investigation and order without regard to the franchise rates and treated the questions presented as unaffected thereby. It exercised the power and duty to fix reasonable and compensatory rates irrespective of any previous municipal action. We must treat the result as a bona fide effort to comply with the local statute. There is no adequate basis for the claim upon which appellants rely. See Puget Sound Traction Co. v. Reynolds, 244 U.S. 574, 578, 37 S.C.t. 705, 61 L. Ed. 1325.

Much consideration was given to the Public Service Law by the Supreme Court in State ex rel. Spokane v. Kuykendall (1922) 119 Wash. 107, 111, 205 P. 3. There a gas company operating in Spokane under a franchise which prescribed maximum rates asked for increased rates. The commission disapproved the proposed schedule but permitted the company to charge rates declared to be just, reasonable and sufficient. These exceeded the ones theretofore charged and were 561, § 34) the terms of a franchise contract The court said:

' * *  * By the act of 1911 (Laws 1911, p. 561, § 34) the terms      of a franchise contract like the one in question here are      binding upon the parties until the department of public works      (heretofore the public service commission) has made an order      directing a departure therefrom; and, without question, the      department has the right and power to order a departure. State ex rel. Ellertsen v. Home Tel. & Tel. Co., 102 Wash. 196, 172 P. 899. In the case of State ex rel. Webster v.     Superior Court, 67 Wash. 37, 120 P. 861, Ann. Cas. 1913D, 78,     L. R. A. 1915C, 287, it was decided that the public service      commission law placed the entire subject of rate regulation      under the control of the commission, that no contract between      a city representing the public and a public service company      would be allowed to interfere with that control, and by way      of application of the rule, it was decided in that case to be      the duty of the commission to the company to fix a rate which      was sufficient (a rate that would afford a fair interest      return on the investment), in spite of the franchise contract      fixing rates which were too low. That, in legal effect, is     what has been done in the present case.'

Responding to an argument in behalf of the city, based upon the proviso of section 43, supra, the court further said:

'Therefrom it appears to be argued that the rates provided in     the contract should continue until the commission makes an      order specifically declaring and directing in so many words      that the contract shall be terminated. We may overlook the     fact, if need be, that, upon the petition of the city, the      rates were reduced in 1913, and that in 1918 they were      increased upon the application of the gas company, and      consider the franchise contract as having been wholly      undisturbed until the present time, and still we would be      compelled to determine, as we do determine, that the present      order of the department of public works is just as effective      as if, after fixing the rates, there had been added therein      the words 'and it is hereby directed that the rates provided      in the franchise shall be and they are hereby terminated,' or      words of similar import. That is the legal effect of what was     done, and the form or language by which it was accomplished      is not very material.'

In the same cause the gas company maintained that the rates prescribed by the commission's order were inadequate for its needs and unjust. This matter was carefully considered upon the merits, but the opinion nowhere suggests that the rates prescribed should be treated as if specified in the franchise and obligatory upon the company whether compensatory or no.

Affirmed.

Mr. Justice STONE took no part in the consideration of this case.