Washington Gas Light Co. v. Baker

• Decision Date: 26 December 1951
• Docket Number: No. 11084-11086.,11084-11086.
• Parties: WASHINGTON GAS LIGHT CO. v. BAKER. PUBLIC UTILITIES COMMISSION OF DISTRICT OF COLUMBIA v. BAKER. CASE v. BAKER.
• Court: U.S. Court of Appeals — District of Columbia Circuit

90 US App. DC 98, 195 F.2d 29 (1951)

WASHINGTON GAS LIGHT CO. v. BAKER.

PUBLIC UTILITIES COMMISSION OF DISTRICT OF COLUMBIA v. BAKER.

CASE v. BAKER.

Nos. 11084-11086.

United States Court of Appeals District of Columbia Circuit.

Argued October 29, 1951.

Decided December 26, 1951.

COPYRIGHT MATERIAL OMITTED

Mr. William E. Leahy, Washington, D. C., with whom Messrs. William J. Hughes, Jr., and C. Oscar Berry, Washington, D. C., were on the brief, for appellant in No. 11084.

Mr. Lloyd B. Harrison, Asst. Corp. Counsel for the District of Columbia, with whom Mr. Vernon E. West, Corp. Counsel, was on the brief, for appellant in No. 11085.

Mr. William A. Roberts, Washington, D. C., for intervenors William A. Roberts and the law firm of Roberts & McInnis in Nos. 11084-5.

Mr. John H. Connaughton, Washington, D. C., for appellant in No. 11086.

Mr. Vernon V. Baker, pro se, and Mr. Herbert P. Leeman, Washington, D. C., for appellee in Nos. 11084-5-6.

Mr. William A. Roberts, Washington, D. C., with whom Mrs. Irene Kennedy, Washington, D. C., was on the brief, for William A. Roberts and the law firm of Roberts & McInnis, amici curiae in No. 11086.

Before EDGERTON, BAZELON and FAHY, Circuit Judges.

FAHY, Circuit Judge.

These appeals raise questions as to the validity of orders of the District Court made on remand after our decision in Washington Gas Light Co. v. Baker, 88 U.S.App.D.C. 115, 188 F.2d 11, decided December 21, 1950, certiorari denied, 1951, 340 U.S. 952, 71 S.Ct. 571, 95 L.Ed. 686. We there affirmed the District Court in holding invalid an increase in gas rates which had been approved by rate order No. 3600 of the Public Utilities Commission of the District of Columbia, entered November 9, 1949.

I. During the pendency of the appeals in Nos. 11084-5 Roberts & McInnis and William A. Roberts, attorneys, filed a motion for leave to withdraw as counsel for Vernon V. Baker, appellee, personally, to intervene, and to appear as amici curiae. We postponed acting on this motion until argument of the appeals, allowing the moving attorneys to file briefs and argue orally. We now dispose of the motion as follows: permission to withdraw as counsel for Vernon V. Baker, appellee, personally, is granted¹; leave to intervene is granted, and leave to appear as amici curiae is denied, since intervention is allowed. The briefs have been considered.

II. In No. 11086 John V. Case had petitioned the District Court for leave to intervene as a gas consumer. He protested the allowance of attorneys' fees and expenses, hereinafter discussed, and alleged that no other party protected the interests he asserted. He appeals from the denial of his petition to intervene.

Mr. Case did not seek to intervene until the District Court had allowed the fees and expenses to which he objects and until the Company had filed its notice of appeal from the allowance orders.² Rule 24(a), Fed.Rules Civ.Proc., 28 U.S.C.A., provides for intervention on "timely application." It was well within the discretion of the District Court to deny the petition as untimely. See Simms v. Andrews, 10 Cir., 1941, 118 F.2d 803; Lockwood v. Hercules Powder Co., D.C.W.D.Mo. 1947, 7 F.R.D. 24; see, also, 4 Moore's Federal Practice (2d ed.), pp. 120-1; United States v. California Co-op. Canneries, 1929, 279 U.S. 553, 566, 49 S.Ct. 423, 73 L.Ed. 838. Although Mr. Case has not sought intervention in this court, we have nevertheless considered his briefs as though filed by him as amicus curiae in Nos. 11084-5, and we have heard him in oral argument.

III. The appeals in Nos. 11084-5 bring before us the following questions, namely, whether it was error for the District Court (1) to require interest, fixed by the court at 5%, to be paid by the Company on refunds to be made to consumers of excess gas rates collected under the invalidated rate order; (2) to allow $55,000 attorneys' fees to be paid out of the fund composed of such excess rates; (3) to provide for the reimbursement of $12,715.48 expenses incurred by attorneys, likewise to be paid out of said fund, and (4) to refuse to remand the case to the Commission.

(1) Interest. Since there is no statutory authorization of interest, in the circumstances here presented, the question is to be decided on equitable considerations. United States v. United Drill & Tool Corp., 1950, 87 U.S.App.D.C. 236, 183 F.2d 998.³

There is no reason to believe the rate increase was not sought in good faith. The public body charged with primary responsibility authorized the higher rates. The proceedings in which the Company and the Commission thereafter sought to defend this action were not unduly delayed. During the pendency of the appeal in this court we refused to stay collection of the increase. We required the amounts involved to be impounded, but neither in our impounding order nor in the proceedings antecedent to it was any suggestion advanced that interest would attach if the appeal failed. The District Court had not even expressly provided for a refund, though it had invalidated the higher rates. Once the main litigation was finally decided the bulk of excess collections was, as required, refunded with reasonable expedition, without interest. We refused to stay the refunding while the interest question was on appeal. In all these circumstances we conclude that it was error to order the Company to pay interest. Our conclusion is based on the equities, not on lack of power in the District Court due to the fact that while Washington Gas Light Co. v. Baker, supra, was pending in this court we had denied an application for interest. That action is to be construed only as a ruling that we did not deem such an allowance on an original application to us at that time to be proper.

(2) Attorneys' fees.⁴ We consider this problem first in general and then in its application to the several attorneys for the plaintiff.

(a) In general. As a consequence of the main litigation about $1,250,000 was required to be refunded to approximately 175,000 gas consumers. Allowance of fees to be paid from this fund which inured to the general benefit of gas consumers was permissible. This is so without regard to the question whether or not the litigation carried forward by Mr. Baker and his attorneys was a class action. The Supreme Court has held in Sprague v. Ticonic Nat. Bank, 1939, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184:

"* * * Whether one professes to sue representatively or formally makes a fund available for others may, of course, be a relevant circumstance in making the fund liable for his costs in producing it. But when such a fund is for all practical purposes created for the benefit of others, the formalities of the litigation — the absence of an avowed class suit or the creation of a fund, as it were, through stare decisis rather than through a decree — hardly touch the power of equity in doing justice as between a party and the beneficiaries of his litigation. * * *" 307 U.S. at page 167, 59 S. Ct. at page 780.

It appears from the opinion that the costs referred to include counsel fees as well as expenses, and that the ability of equity to do justice between a party and the beneficiaries of his litigation includes the power to require such beneficiaries to contribute to the fees and expenses. We think the principles and reasoning of the case fully support the action of the District Court here. The case also disposes of the contention that the allowance of counsel fees was erroneous because inconsistent with the mandate which followed our decision of December 21, 1950. In the words of the Supreme Court, "While a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues." 307 U.S. at page 168, 59 S.Ct. at page 781.

As we have said with respect to interest, so too with respect to attorneys' fees, we did not dispose of the merits of the question when we denied allowance of such fees on application to us pending the appeal. That was not an adjudication covered by the mandate which thereafter issued as a consequence of our decision on the merits. The question of fees remained within the competence of the District Court on application to it. Nor was that court precluded because of the absence of any reference to attorneys' fees in the statute governing review of Commission orders. The court could deal with the matter in the exercise of its equitable powers over a fund under its control. As illustrative of the exercise of a similar power this court required the excess rates to be impounded. No one seriously questions the legality of that order. Yet the review statute contains no provision for it. We agreed with the Company and the Commission that it would be inequitable to stay the continued collection of the increased rates pending the litigation. Otherwise both Company and consumers would suffer hardship if the increase should be ultimately upheld. The solution was to permit the rates to remain in effect but to impound the questioned excess so that it could be readily made available for refund if invalidated. This was done in the exercise of an equitable discretion well within the authority of the court. See Ford Motor Co. v. National Labor Relations Board, 1939, 305 U.S. 364, 59 S.Ct. 301, 83 L.Ed. 221. A like basis for action carries through into the disposition of the fund. In the mandate on the main case we accordingly said that the District Court should enter "appropriate order or orders to effect the distribution to rate-payers." In making such order or orders the District Court could provide payment for professional services which aided in making the fund available for distribution. Sprague v. Ticonic Nat. Bank, supra.

(b) ...