Evening star. [volume] (Washington, D.C.) 1854-1972, 1923-04-10


From which IT would appear that,
while the lower court would be re-
quired to give consideration to this
element. the weight to be allowed 1t
in final determination of fair value
and discretion of the court, and this
consideration would also apply "
the Supreme Court Of the District of
Columbia should remand the cas-.
for revaluation.
Rate Case Hangs Fire.
"Of course, do not know what the
attitude of the Supreme Court of the
District of Columbia will be when the
case is remanded to 1t. II is certain,
however, that nothing that will be
done can affect the present impounded
fund and its accretions until a final
determination OF fair value as Of the
time when the rates were fixed has
been made. The law gave the com
mission the RICH. TO fix rates after
hearing, and those rates cannot be
disturbed unless the company proves
to the satisfaction both of the COM
mission and OF the court that they
were in fact and in law, cOnfiscatory
when made, and this could only be
done by the company proving that the
value of its property at the time the
rate was fixed was SO great that the
rate itself failed to insure return
OF per cent, and even in this event
the Supreme Court has held that the
fact that even less than 8 per cent
return was given under existing rates
! did not, taken alone, show that the
rate was confiscatory.
"Of course. the rate case is sep
arate and distinct from the valuation
hat "
ing that had the valuation been sus-
! tanned, little ground, If any, would
have been left for questioning the
rate.
II do not know what, II any, move
the company contemplates making in
reference to the rate case, but IL is
certain that II will net be finally de-
cided until valuation for the prop
erty is determined as Of approximate
~ the time the rate was made"
The opinion In the Pepco case yes
terday was rendered by Chief Justice
Taft, and there was no dissenting
opinion.
The opinion, after going at some
length into arguments supporting the
power Of Congress to create the Public
Utilities Commission and providing for
review OF its orders by the two Dis
trict courts. discusses the question Of
the jurisdiction of the United States Su-
preme Court as follows:
Discusses Jurisdiction.
| ''Such legislative or administrative
| Jurisdiction, 1t is well settled, cannot be
| conferred on this court either directly or
by appeal.
The latest fullest authority on this
point is to be found in the opinion
! Of Mr.. Justice Day, speaking for the
court in Muskrat VS.. the United
States. The principle there recog
! Missed and enforced on reason and au-
| thority is that the jurisdiction OF this
| court and of the inferior courts of
| the United States ordained and estab-
lished by Congress, under and by vir-
| tue of the third article OF the Con-
| stitution. Is limited to cases and con-
! troversies in such form that the judi
them and does not extend to an issue
of constitutional law framed by
! Congress for the purpose of invoking
| the advice of this court without real
| parties or a real case or to admins
tratire or legislative issues or con-
| troversies.
The fact that the appeal to this
| court Is invalid does not, however
render paragraph 81 invalid as a
whole. Paragraph 60 Of the law de-
clares these paragraphs to be inde-
pendent and directs that any para
graph or any part OF II Invalid shall
not affect the validity OF the rest
Moreover. we think Congress would
| have given the appeals to the courts
| OF the District, even II II had known
that the appeal to this court could
not stand.
Question Of Validity.
Some question has been made as
| to the validity OF paragraph 65
| which forbids all recourse to court
to set aside, vacate and amend the
orders Of the commission after 120
days. and of paragraph So. which puts
the burden upon the party adverse to
the commission TO show by clear and
satisfactory evidence inadequacy, un-
lreasonableness or urlawfulness OF
the order complained of.
! It is suggested that this deprives
the public utility Of its constitutional
right to have the Independent judy
ment of the court on the question or
the confiscatory character of an order
and so brings the whole law within
the inhibition Of the case of Ohio Val
! ley Water Company against Ben avon
Burrough. 1t is enough to say that
even If paragraphs 65 and SO were in
| valid the whole act would not fail III
view of paragraph 90, already re-
| ferred to.
at will be time enough TO consider
the validity of those sections when IL
is sought to apply them 10 bar or
limit and independent judicial pro-
iceedings. raising the question whether
commission Is confiscatory. Our con-
clusion that the provision for appeal
to this court in paragraph "a is in
valid makes 1t unnecessary to decide
4 whether the appeal must be from a
final decree or whether the decree OF