City of Dayton v. Public Utilities Commission

• Decision Date: 28 December 1962
• Docket Number: Nos. 37110-37112,s. 37110-37112
• Citation: 174 Ohio St. 160,187 N.E.2d 150
• Court: Ohio Supreme Court
• Parties: , 21 O.O.2d 427 CITY OF DAYTON, Appellant, v. PUBLIC UTILITIES COMMISSION of Ohio, Appellee. The DAYTON POWER & LIGHT CO., Appellant, v. PUBLIC UTILITIES COMMISSION of Ohio, Appellee (Two cases.)

Page 160

174 Ohio St. 160

187 N.E.2d 150, 21 O.O.2d 427

CITY OF DAYTON, Appellant, v. PUBLIC UTILITIES COMMISSION of Ohio, Appellee.

The DAYTON POWER & LIGHT CO., Appellant, v. PUBLIC UTILITIES COMMISSION of Ohio, Appellee (Two cases.)

Nos. 37110-37112.

Supreme Court of Ohio.

Dec. 28, 1962.

Herbert S. Beane, City Atty., Robert J. White, Steer, Strauss & Adair and James J. Ryan, Cincinnati, for the city of Dayton.

Julian De Bruyn Kops, J.R. Newlin, Dayton, Squire, Sanders & Dempsey, John Lansdale, Jr., and Alan P. Buchmann, Cleveland, for The Dayton Power & Light Company.

Mark McElroy, Atty. Gen., Andrew R. Sarisky and Herbert T. Maher, Columbus, for appellee, Public Utilities Commission.

PER CURIAM.

Is the annual rate of return of 5.4 per cent allowed by a majority of the Public Utilities Commission unreasonable or unlawful as contended by both the city and the company, each, of course, for different reasons?

The city still insists that the ordinance rate of 3.6 per cent is reasonable and lawful while the company wants a minimum rate of 6.3 per cent per annum.

The majority of the commission rendered the following ultimate findings:

"(1) That the appeals of The Dayton Power & Light Company from ordinance No. 19093 and ordinance No. 19094 of the city of Dayton, Ohio, passed July 7, 1958, are duly filed pursuant to Section 4909.34 of the Revised Code and that this commission has jurisdiction thereof;

"(2) That the date certain for purposes of these proceedings is June 30, 1957;

"(3) That the statutory rate base valuation is $21,900,980 as of the date certain, June 30, 1957;

"(4) That at the ordinance rates, the annual rate of return of 3.6 per cent is insufficient to yield reasonable compensation for the service rendered;

"(5) That the fair annual rate of return for purposes of these proceedings is 5.4 per cent;

"(6) That the allowable dollar annual return is $1,182,653;

"(7) That the allowable expenses, including taxes and depreciation charges are $11,198,633; and

"(8) That the allowable gross annual revenue is $12,381,286."

A study of the record and briefs discloses 39 assignments of error, 7,000 pages of evidence taken during 57 days of hearing, 384 pages of briefs, and 40 pages of majority, concurring and dissenting opinions by members of the Public Utilities Commission.

On result of the study of this mass of material is that the court finds no respect in which the order of the commission is unlawful. The principles of law involved have been discussed and applied by this court in numerous cases.

The remaining question is whether the order is unreasonable as contended by both the city and the company.

To reach this conclusion it would be necessary for the court to base its finding on irreconcilably conflicting opinion testimony of expert witnesses couched in terms understandable chiefly to each witness alone and amounting to no more than a sheer guess. The members of this court are neither accountants nor engineers, and manifestly it would be unfair to the litigants and to the commission for the court to pretend that it is in a position to better evaluate the evidence and...