Canadian River Gas Co. v. Federal Power Commission

• Decision Date: 24 July 1940
• Docket Number: No. 1931.,1931.
• Citation: 113 F.2d 1010
• Parties: CANADIAN RIVER GAS CO. et al. v. FEDERAL POWER COMMISSION.
• Court: U.S. Court of Appeals — Tenth Circuit

113 F.2d 1010 (1940)

CANADIAN RIVER GAS CO. et al. v. FEDERAL POWER COMMISSION.

No. 1931.

Circuit Court of Appeals, Tenth Circuit.

July 24, 1940.

Elmer L. Brock, of Denver, Colo. (C. H. Keffer, H. L. Adkins, H. C. Pipkin, Wales H. Madden, and H. M. Adkins, all of Amarillo, Tex., P. C. Spencer, of New York City, Wm. L. Darrah, of Cody, Wyo., John P. Akolt, E. R. Campbell, and Milton Smith, all of Denver, Colo., and William A. Dougherty, of New York City, on the brief), for petitioners.

Richard J. Connor, Asst. Gen. Counsel, Federal Power Commission, of Washington, D. C. (David W. Robinson, Jr., Gen. Counsel, Edward H. Lange, and W. A. Whittlesey, Attys., Federal Power Commission, all of Washington, D. C., on the brief), for respondent.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

PHILLIPS, Circuit Judge.

In this opinion Canadian River Gas Company will be referred to as the Canadian Company and the Colorado Interstate Gas Company as the Colorado Company; collectively, they will be referred to as the companies; and the Federal Power Commission will be referred to as the Commission.

The order sought to be reviewed was entered March 14, 1939. The application of the companies for a rehearing was denied May 9, 1939. The petition for review was filed July 7, 1939. In the verified petition for rehearing our attention is directed to three orders made by the Commission, No. 63 entered September 6, 1939, No. 65 entered October 17, 1939, and No. 69 entered November 3, 1939, and it is stated that none of these orders has been vacated and none has been complied with by the companies. We are of the opinion that the question of whether the order of March 14, 1939, is reviewable must be determined under the facts existing at the time the petition for review was filed. The companies might have taken proper steps to have the subsequent orders reviewed and in those proceedings raised the jurisdictional question, but they may not in the present proceeding have their petition considered as though they were seeking review of the subsequent orders.

We now turn to certain cases cited by counsel for the companies in their memorandum brief on rehearing, in support of their contention that the order of March 14, 1939, is reviewable. In Federal Power Commission v. Pacific Power & Light Company, 307 U.S. 156, 59 S.Ct. 766, 83 L.Ed. 1180, the Inland Power & Light Company owned three hydroelectric projects in Oregon and Washington and the Pacific Company was engaged in generating and distributing electric energy in Oregon and Washington, and owned and operated facilities for interstate transportation of electricity. Section 203(a) of the Federal Power Act, 16 U.S.C.A. § 824b (a), provides that no public utility shall sell the whole of its facilities subject to the jurisdiction of the Commission, without first having secured an order of the Commission authorizing it so to do. The Inland and Pacific Companies filed a joint application with the Commission for approval, under §§ 8 and 203 of the Federal Power Act, 16 U.S.C.A. §§ 801, 824b, of a proposed transfer of all the assets of Inland to Pacific, and of the termination of Inland's existence. Having found, after a full hearing, that the applicants had failed to establish that the transfer would be consistent with the public interest within the contemplation of § 203(a) of the Federal Power Act, the Commission ordered that the application be denied. The Commission did not merely find that it had jurisdiction to hear and determine the application, but it proceeded with the hearing, made its finding, and denied the application. In the instant case, the Commission merely made a preliminary finding of jurisdiction and ordered the institution of the proceeding to investigate the rates, charges, classifications, rules, regulations, practices, and contracts of the companies. It has made no final order in the proceeding.

Lehigh Valley R. R. Co. v. United States, 243 U.S. 412, 37 S.Ct. 397, 61 L.Ed. 819, is discussed in Note 11 to the opinion in Rochester Tel. Corp. v. United States, 307 U.S. 125, 132, 59 S.Ct. 754, 758, 83 L.Ed. 1147. That case arose under the Panama Canal Act, 37 Stat. 560, 566, 49 U.S.C.A. § 5. The act prohibited, after July 1, 1914, any ownership by a railroad in any common carrier by water when the railroad might compete for traffic with the water carrier, and authorized the Interstate Commerce Commission to determine questions of fact as to such competition, and to extend the time beyond July 1, 1914, if the extension would not exclude or reduce competition on the water route. In January, 1914, the Lehigh Company filed a petition praying for a hearing as to whether the services of a steamboat line owned by it would be in violation of the act and for an extension of time. The Interstate Commerce Commission found, after a full hearing, that an extension and continuation of the existing services by water would prevent, exclude, and reduce competition on the Great Lakes, and entered its order denying the application. See Lake Line Applications Under Panama Canal Act, 33 I. C. C. pages 699, 716. Thereafter, it denied a petition for rehearing. 37 I. C. C. page 77. The Lehigh Company then filed its bill in equity to enjoin the enforcement of the order. In that case, the proceeding was prosecuted to final determination before the Interstate Commerce Commission, findings were made, and an order was entered denying an extension of time for compliance with the act by the Lehigh Company. We reiterate that, in the instant case, there was a mere preliminary finding of jurisdiction and no final order commanding or inhibiting any action on the part of the companies.

Section 402 of the Transportation Act, 1920, 41 Stat. 456, 477, 49 U.S.C.A. § 1(18), prohibits any carrier by railroad subject to the act from undertaking any extension of its lines or construction of new lines, without first securing from the Interstate Commerce Commission a certificate of public convenience and necessity. Paragraph 22 of § 402, supra, exempts from the requirements of § 402, supra, street, suburban, or interurban electric railways, which are not operated as a part or parts of a general steam railroad system of transportation. In Piedmont & Northern Ry. v. United States, 280 U.S. 469, 50 S.Ct. 192, 74 L.Ed. 551, the railway company filed an application for a certificate of public convenience and necessity...