Alston Coal Co. v. Federal Power Commission, No. 2741.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtHUXMAN and MURRAH, Circuit , and SAVAGE
Citation137 F.2d 740
PartiesALSTON COAL CO. et al. v. FEDERAL POWER COMMISSION et al.
Docket NumberNo. 2741.
Decision Date27 August 1943

137 F.2d 740 (1943)

ALSTON COAL CO. et al.
v.
FEDERAL POWER COMMISSION et al.

No. 2741.

Circuit Court of Appeals, Tenth Circuit.

August 27, 1943.


137 F.2d 741

Frank H. Terrell, of Kansas City, Mo., for petitioners.

Harry S. Littman, of Washington, D. C. (Charles V. Shannon and Robert L. Russell, both of Washington, D. C., on the brief), for respondent Federal Power Commission.

Before HUXMAN and MURRAH, Circuit Judges, and SAVAGE, District Judge.

HUXMAN, Circuit Judge.

This proceeding was instituted under the Natural Gas Act of 1938, 15 U.S.C.A. § 717 et seq. On October 20, 1939, following a complaint by the Public Service Commission of Missouri, the Federal Power Commission entered an order for an investigation of the gas rates of the Cities Service Gas Company. Notice was given fixing the time of a public hearing of the matter involved in the proceeding. On December 12, 1942, after the hearing had been in progress for a considerable time, the petitioners filed a petition with the Commission for leave to intervene, requesting that they be granted sixty days to assemble and prepare evidence showing the economic effect a reduction of the gas rates would have on the demand for petitioners' coal. They further requested that after the expiration of the sixty days, the case be set for further hearing. The application to intervene was denied, but petitioners were granted the right to participate in the hearing to the extent of presenting evidence material and relevant to the issues, and to file briefs and make oral arguments. This they refused to do. They have appealed from the order denying them the right to intervene. The case is before us on a motion by the Commission to dismiss the appeal. The motion is urged on the ground that the order appealed from is interlocutory in nature and is not a final, appealable order.

The determination of the question presented by the motion depends upon whether petitioners had the right under the statute in question to intervene. That in turn depends upon whether the matter they urge in their petition for intervention is a factor which must be considered by the Commission in determining the rate. It is a well settled principle of law that where intervention is a matter of right, an order denying the right to intervene is a final, appealable order. The late case of Federal Communications Commission v. National Broadcasting Company, 63 S.Ct. 1035, 87 L. Ed. ___, decided May 17, 1943, on which petitioners place strong reliance for the position they take, is authority in support of this statement. Aside therefrom, the case, however, has little value here. It arose under the Communications Act of 1934, 48 Stat. 1064, 47 U.S.C.A. §§ 35, 151 et seq. The provisions...

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8 practice notes
  • Nichols v. Board of Trustees of Asbestos Workers Local 24 Pension Plan, No. 82-1959
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 11, 1987
    ...v. FPC, 354 F.2d 608, 617 (2d Cir.1965), cert. denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966); Alston Coal Co. v. FPC, 137 F.2d 740, 742 (10th 111 See Cities of Statesville v. Atomic Energy Comm'n, supra note 110, 142 U.S.App.D.C. at 287, 441 F.2d at 977; City of San Antonio v. ......
  • Scenic Hudson Preservation Conf. v. Federal Power Com'n, No. 106
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 29, 1965
    ...has ample authority reasonably to limit those eligible to intervene or to seek review. See Alston Coal Co. v. Federal Power Comm., 137 F.2d 740, 742 (10th Cir. 1943). Representation of common interests by an organization such as Scenic Hudson serves to limit the number of those who might ot......
  • Virginia Petroleum Job. Ass'n v. Federal Power Com'n, No. 14584.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 29, 1958
    ...v. Federal Power Commission, 1951, 89 U.S.App.D.C. 135, 191 F.2d 462; Alston Coal Co v. Federal Power Commission, 10 Cir., 1943, 137 F.2d 740. As Jobbers has an adequate remedy within the four corners of the Act, its petition for an extraordinary writ of injunction is dismissed. Easton Publ......
  • In re Electric Bond & Share Co.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 20, 1946
    ...with the Commission. 15 U.S.C.A. § 79s; Rule XVII(g) of the Commission's Rules; cf. Alston Coal Co. v. Federal Power Commission, 10 Cir., 137 F.2d 740, 742. Refusal of such participation is like an order denying intervention in an action where intervention is not a matter of right. Such an ......
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8 cases
  • Nichols v. Board of Trustees of Asbestos Workers Local 24 Pension Plan, No. 82-1959
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 11, 1987
    ...v. FPC, 354 F.2d 608, 617 (2d Cir.1965), cert. denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966); Alston Coal Co. v. FPC, 137 F.2d 740, 742 (10th 111 See Cities of Statesville v. Atomic Energy Comm'n, supra note 110, 142 U.S.App.D.C. at 287, 441 F.2d at 977; City of San Antonio v. ......
  • Scenic Hudson Preservation Conf. v. Federal Power Com'n, No. 106
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 29, 1965
    ...has ample authority reasonably to limit those eligible to intervene or to seek review. See Alston Coal Co. v. Federal Power Comm., 137 F.2d 740, 742 (10th Cir. 1943). Representation of common interests by an organization such as Scenic Hudson serves to limit the number of those who might ot......
  • Virginia Petroleum Job. Ass'n v. Federal Power Com'n, No. 14584.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 29, 1958
    ...v. Federal Power Commission, 1951, 89 U.S.App.D.C. 135, 191 F.2d 462; Alston Coal Co v. Federal Power Commission, 10 Cir., 1943, 137 F.2d 740. As Jobbers has an adequate remedy within the four corners of the Act, its petition for an extraordinary writ of injunction is dismissed. Easton Publ......
  • In re Electric Bond & Share Co.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 20, 1946
    ...with the Commission. 15 U.S.C.A. § 79s; Rule XVII(g) of the Commission's Rules; cf. Alston Coal Co. v. Federal Power Commission, 10 Cir., 137 F.2d 740, 742. Refusal of such participation is like an order denying intervention in an action where intervention is not a matter of right. Such an ......
  • Request a trial to view additional results

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