Application of Lewiston Grain Growers, Inc.

• Decision Date: 21 June 1949
• Docket Number: 7513
• Citation: 207 P.2d 1028,69 Idaho 374
• Parties: Application of LEWISTON GRAIN GROWERS, Inc., et al. v. ROOKE et al LEWISTON GRAIN GROWERS, Inc., et al.
• Court: Idaho Supreme Court

207 P.2d 1028

69 Idaho 374

Application of LEWISTON GRAIN GROWERS, Inc., et al.

LEWISTON GRAIN GROWERS, Inc., et al. v. ROOKE et al

No. 7513

Supreme Court of Idaho

June 21, 1949

Appeal from Public Utilities Commission of Idaho.

Reversed with direction to grant a rehearing.

Maurice H. Greene, Boise, V. R. Clements, Lewiston, for appellants.

Estimates of values are proper evidence to be considered if evidence of actual values are unobtainable. Boise Artesian Water Co v. Public Utilities Commission, 40 Idaho 690, 707, 236 P. 525.

A failure to provide adequate rates is an unlawful exercise of the power to prescribe rates and is violative of the 5th and 14th amendments to the Constitution of the United States and Section 13, Article I, of the Constitution of the State of Idaho. Capital Water Co. v. Public Utilities Commission, 44 Idaho 1, 262 P. 863; Mountain View rural Telephone Co. v. Interstate Telephone Co., 55 Idaho 514, 46 P.2d 723; Citizens Gas Co. of Hannibal v. Public Service Commission, D.C., 8 F.2d 632.

An order of the Public Utilities Commission based upon a finding without evidence is arbitrary and will be set aside. Application of Nichols, 68 Idaho 490, 199 P.2d 255; Oregon Shortline Railroad Co. v. Public Utilities Commission, 47 Idaho 482, 276 P. 970.

Robert E. Smylie, Attorney General, Don J. McClenahan, Asst Attorney General, for Public Utilities Commission.

Findings of the Commission are presumptively correct upon appeal and the function of the Court is only to determine whether order is valid and reasonable and whether it invades any constitutional right. Nez Perce Roller Mills of Lewiston v. Public Utilities Commission of Idaho, 54 Idaho 696 698, 28 P.2d 207 (1934).

John L. Rooke, John J. Hanley, Cottonwood, W. J. Crea, Fenn, pro sese.

Taylor, Justice. Holden, C. J., and Porter and Keeton, JJ., and Sutphen, D. J., concur.

OPINION

Taylor, Justice.

The appellants, being eighteen warehouse companies operating a number of warehouses in the northern part of the state, under date of February 10, 1948, petitioned the Public Utilities Commission of Idaho to amend existing schedule of warehouse rates by increasing the handling charges on grains, peas and seeds from $ 1.00 to $ 1.25 per ton, with storage charges at 15 cents per ton per month or fraction thereof after ten days free storage. The storage fixed by the existing rates being 15 cents per ton per month for wheat and 10 cents per ton per month for peas, both following a free storage period of 30 days.

A hearing was had before the Commission on May 18, 1948, at which nine warehouse representatives testified in support of the petitions and four farmers testified in opposition. On June 21, 1948, the Commission made its findings and entered an order granting the petitions to the extent of increasing the storage rate on peas from 10 cents to 15 cents per ton per month. As to the other increases asked, the Commission found in substance that each of the applicants has a different system of accounting; that the Commission is unable to determine that any system of accounting shown by the evidence fully reflects and gives a suitable account of the business transactions of the applicants, or that the practice and procedure of any one of the applicants is acceptable for a suitable and proper system of accounting for warehouses or as a pattern or guide for all the warehouses in the state; and that a suitable and proper uniform system of accounting should be adopted and followed so that rates may be made upon a proper basis, and that the Commission should forthwith establish such a uniform system of accounting for the warehouses within the state. Upon this finding the Commission concluded that further action with reference to rates be held in abeyance and the cause be held open until the establishment of a uniform system of accounting, and an order was entered that the Commission proceed to promulgate and establish such uniform system.

Appellants thereafter petitioned the Commission for a rehearing. By its order dated August 20, 1948, rehearing was denied.

In addition to the findings supporting its original order, in denying the rehearing, the Commission found as follows:

"It is apparent from the record herein that a large majority of the persons who are declared to be warehousemen are engaged in divers forms of business and merchandising not within the scope of the Commission's jurisdiction.

"The warehousemen, in conducting these divers forms of business and merchandising which are beyond the scope of the Commission's jurisdiction, are utilizing warehouse plant, equipment, and labor. The devoting of a property to public use with rates based on such public use precludes any use other than public. If the owner or any other person makes use of the plant, facilities, and personnel, in other than public use, such private use should bear its portion of the costs to maintain and operate the business. To determine what proportion of the cost of maintenance and operation should be considered, a separation as between the different uses must be made.

"For many years, the practice of warehousemen has been not to properly segregate and allocate expenses and revenues incident to public uses on the one hand and private uses on the other. This practice has seriously handicapped this Commission in its effort to determine fair and reasonable rates. Whether or not the rates are fair and reasonable, the Commission cannot accurately determine until expenses and revenues incident to public use are segregated from the expenses and revenue incident to private use. To this end, the Commission has ordered the establishment of a uniform system of accounting and compliance with Section 59-405, Idaho Code Annotated. A uniform system of accounting will enable the Commission to determine what allocations to public use and to private use are proper."

Although not raised by respondents, the question is presented as to whether or not the orders appealed from are final orders and appealable, or whether they are intermediate or interlocutory orders in nature, and not appealable, within the rule announced in Capital Water Company v. Public Utilities Commission, 41 Idaho 19, 237 P. 423. For reasons hereinafter stated, we regard the orders herein considered as in effect final and appealable.

Subject to the limitations of sec. 1, Art. 2, of our State Constitution, the legislature has provided that, "* * * The review on appeal shall not be extended further than to determine whether the commission has regularly pursued its authority, including a determination of whether the order appealed from violates any right of the appellant under the constitution of the United States or of the state of Idaho. * * *" Sec. 61-629, I.C.

The appellants contend that the Commission has not regularly pursued its authority, and that its orders violate their rights under the due process clauses of the federal, 14th Amend., and state, Art. 1, sec. 13, constitutions. More specifically they contend that the Commission, by withholding action upon their petitions for increased rates until the establishment of a uniform system of accounting, requires them, in the meantime, to continue to operate under rates which are unfair and confiscatory in that the evidence which they presented to the Commission shows that they are operating at a loss.

In support of the Commission's action, it is urged that the evidence before the Commission shows that many of the appellants, in addition to their warehouse business, are engaged in other business enterprises which are not within the regulatory jurisdiction of the Public Utilities Commission and that the evidence is not sufficient to enable the Commission to determine what items of expense are properly chargeable against the income of the appellants in their business as warehousemen, and...