United States v. Public Utilities Commission, 8995.

• Decision Date: 24 September 1945
• Docket Number: No. 8995.,8995.
• Citation: 80 US App. DC 227,151 F.2d 609
• Parties: UNITED STATES v. PUBLIC UTILITIES COMMISSION OF DISTRICT OF COLUMBIA et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

80 US App. DC 227, 151 F.2d 609 (1945)

UNITED STATES v. PUBLIC UTILITIES COMMISSION OF DISTRICT OF COLUMBIA et al.

No. 8995.

United States Court of Appeals District of Columbia.

Decided September 24, 1945.

Mr. S. R. Bowen, of Washington, D.C., with whom Messrs. H. W. Kelly and Wm. K. Laws, both of Washington, D. C., were on the brief, for appellee, Potomac Electric Power Company. Mr. Robert E. Lee Goff, of Washington, D. C., also entered an appearance for appellee, Potomac Electric Power Company.

Mr. Marvin C. Taylor, of Boston, Mass., of the Bar of the Supreme Judicial Court of Massachusetts, pro hac vice, by special leave of Court, with whom Assistant Attorney General, Francis M. Shea, and Messrs. Edward M. Curran, United States Attorney, of Washington, D. C., and Arnold Levy, Special Assistant to the Attorney General, were on the brief, for appellant.

Messrs. Richmond B. Keech, Corporation Counsel, District of Columbia, and Lloyd B. Harrison, Assistant Corporation Counsel, both of Washington, D. C., entered appearances for appellee, Public Utilities Commission of the District of Columbia.

Mr. James W. Lauderdale, People's Counsel, of Washington, D. C., also entered his appearance.

Before GRONER, Chief Justice, and MILLER and ARNOLD, Associate Justices.

MILLER, Associate Justice.

The United States is seeking, in this case, to establish its right to appeal — as a person or corporation affected — from an order of one of its own lesser creatures, an administrative agency. In doing so, it faces a handicap which has been built up, largely at its own insistence, in many decisions which have denied such rights¹ to private persons and corporations, or which have so severely limited them as to prevent decision on the merits;² sometimes even to the extent of making impossible a consummation of legislative policy and an achievement of Congressional intent.³

In order that the issues of the present case may be made to appear clearly, it is necessary to set out the following chronology of the proceedings. At the annual hearing held by the Public Utilities Commission of the District of Columbia, in 1943, to determine rates which the Potomac Electric Power Company might charge for the sale of electric energy in the District, two agencies of the United States of America were permitted to intervene. They participated in the hearings throughout, filed briefs and argued orally. Among other things, they contended for the reexamination and amendment or abandonment of the consent-decree, sliding-scale arrangement which has been used by the Commission since 1925 as a basis for calculating and fixing rates. This contention was rejected by the Commission. On July 22, 1944, the Commission issued its findings, opinion and order. It required Potomac to file a new rate schedule which, when applied to kilowatt hour consumption during the test year 1943, will reduce its gross operating revenues substantially. Potomac appealed to the District Court in Civil Action 25,477, challenging the Commission's order on several grounds. The United States and the People's Counsel of the District were permitted to intervene. After a hearing, the Court dismissed Potomac's petition on the merits. We are not concerned, on the present appeal, with the action of the District Court in Civil Action 25,477.

In a separate petition for appeal, Civil Action 26,401, the United States attacked the Commission's order, contending that it had erred in ruling 1 that it was without power to consider exclusion, from the rate base, of Potomac's surplus built up out of earnings under the consent-decree, sliding-scale arrangement; 2 that it must, as a matter of law, include all the surplus in the common stock equity for the purpose of computing the cost of capital component of the permitted basic rate of return; 3 that exclusion of all or part of the surplus from the rate base and from the common stock equity is not required by paragraph 75, section 8 of the Utility Law; 4 that Potomac is entitled to a return on that part of its outstanding stock for which no consideration was paid to it; 5 that paragraph 16 of the Utility Law does not require the addition, to the depreciation reserve, of Potomac's actual earnings on the reserve but only of the four per cent accruals provided for in the consent-decree arrangement of 1925; 6 that the Government's exhibit 74 — purporting to show that control of Potomac was illegally acquired and held, and that the propriety of capitalizing the surplus was thus affected — was inadmissible in evidence; 7 that the rates, which Potomac was permitted to charge, under the Commission's order and pursuant to the consent-decree arrangement, are just and reasonable and will enable Potomac to earn a fair return. The District Court permitted Potomac and James W. Lauderdale, People's Counsel, to intervene in Civil Action 26,401. It dismissed the action, and the Government's petition; giving in support of its order the following statement of reasons: "The Court allows the Motion of Potomac Electric Power Company to dismiss the appeal of the United States because said Petition fails to state any facts (a) showing that Petitioner is a person or corporation affected by Order No. 2796 of the Public Utilities Commission of the District of Columbia from which it has filed said appeal, within the meaning of the Act of Congress approved March 4, 1913, as amended (Sec. 43 — 705, D.C.Code); (b) showing that the Petitioner has any interest entitling it to prosecute said appeal, or (c) entitling the Petitioner to relief herein. Moreover the United States does not have any property right or such interest to file independent appeal where its only basis is that of a consumer of the Potomac Electric Power Company and the Court feels strengthened in this view by the amendatory provision in the Act creating the said Commission providing for a People's Counsel and prescribing his duties in respect thereto."

The Government appealed to this Court. Potomac moved to dismiss the appeal and presented two points for our determination: 1 Whether the United States is a person or corporation affected by the Commission's order within the meaning of the statute;⁴ 2 whether the United States has any interest entitling it to appeal from the Commission's order. Preliminarily, it will be noted that any party may appeal to this Court from an order of the District Court in such a proceeding as the present, and, thereupon, the Code specifies that we shall have and take jurisdiction.⁵ As the United States was a party in Civil Action 26,401, it comes clearly within this specification. However, its appeal would be barren of purpose if the United States were not a proper party in the District Court. On this appeal it has chosen to join issue on that point. Moreover, it has gone one step farther and has limited the issue to the question whether the United States, as a customer of Potomac, had standing to institute and prosecute its petition of appeal in the District Court; in other words, whether as such a customer, it is a person or corporation affected by the Commission's order. As will appear, we have concluded that it is.

Appellees contend that whether or not appellant comes within the provisions of the Code, it must, in order to have standing in court, show a violation of some legally protected right; that where the only interest of a person is in the rate which he enjoys for electricity used, this is insufficient to establish his right to challenge the Commission's orders; that his interest must be proprietary in nature, some legal or equitable right must have been invaded; that he must show he has been subjected to legal injury; and that appellant's right in the present case is limited to protection against unjust discrimination. But the rule is that the right of appeal in such cases as the present is statutory in character and the extent of the right, in each case, depends, not upon the ordinary requirements of injunction suits, but, instead, upon the meaning of the language used in the statute.⁶ The cases relied upon by appellees interpreted distinguishable legislative language there pertinent,⁷ or dealt with situations in which no such right of appeal had been given.⁸

There can be no question that Congress had power to give a right of appeal to consumers, from orders of the Commission.⁹ The question is whether the language of the Code reveals an intention to do so. The crucial language is: "Any public utility or any other person or corporation affected by any final order or decision of the Commission * * *."¹⁰

Unless the contrary appears, statutory words are presumed to be used in their ordinary and usual sense, and with the meaning commonly attributable to them.¹¹ Giving to the words quoted the meaning commonly attributed to them, and assuming that Congress intended to use them in their ordinary and usual sense, there can be no question that a consumer of Potomac is a person or corporation affected by the Commission's order.¹² It is true that the term "person affected" is one of uncertain meaning. Congress, as well as the state legislatures, have used it and other similar terms,¹³ to define and to limit the privilege of appeal from orders of administrative agencies. And the courts have added to the confusion by imposing further limitations of meaning.¹⁴ We see no reason, in the present case, however, to attribute any technical or other special meaning¹⁵ to the language of the Code, which governs appeals from orders of the Public Utilities Commission. Applying the familiar rule of statutory construction that, if possible, effect should be given to the whole statute,¹⁶ and that such an interpretation should be chosen as will effect its purpose, rather than one which defeats it,¹⁷ we find that Congress has used language, throughout the applicable Code sections, indicating an intention that consumers shall have a right to challenge the Commission's actions.¹⁸ The word "...