Evening star., 1923-10-27
D. c. Supreme Court UphoIds
Plea to Modify Impound-
ing Order.
SPECIFIC HEARING DATE
NOT SET IN DECISION
Chief Justice Mccoy Recommends
Hearing Before Justice in
Equity Court.

Chief Justice Mccoy Of the District
Supreme Court today upheld the con-
tention of the Public Utilities Commits
sion that the court may proceed with
new valuation of the property of
the Potomac Electric Power Com
pany. and that the impounding order
may be modified SO that the company
may receive the benefit of the latest
reduction in the price of current
The Pepco opposed both contentious
and asked that all impounding be
stopped and that the old price of 10
cents fixed by Congress should OBJ
tain and the company be no longer
required to set aside the difference
between the 10-cent per kilowatt hour
paid by the consumer and the price
fixed by the commission.
Keep Impounding Order.
The impounding order of 1917 re-
quired the company to set aside
cents out of the 10 cents collected
from the consumer Later the COM
mission amended its rate fixing a new
price of 612 cents under which the
company was required to impound
only Y cents. Recently the rate was
modified per cent and the Public
UtilltleE Commission through At
torney Conrad H. Syme and Corpora
ton Counsel Stephens asked for a
further modification so that the com
pany might not be required to i'm
pound more than the difference be-
tween the latest rate and the price
collected from the consumer.
Date for Hearing Not Set.
Chief Justice Mccoy directs that
the case be set for hearing on the
question of revaluation before one
of the justices sitting in equity. No
date is mentioned in the opinion of
the court for the rehearing, but the
suggestion is made that time be al
lowed in which the power company
may apply to the District Court of
Appeals for the reversal of the de-
cision today rendered.
In the course of his opinion the
chief justice says, 1.-The Supreme Court
has ruled that the law requires that
the court should consider the record
before the commission.
Whether there is sufficient evidence
to enable valuation to be made as
of the present is beside the point. The
valuation made by the commission as
of December 81. 1918, is the only
thing to be considered. That it was
made as of that date is stated by
the Court of Appeals, and the plain
tiff's contention was just that.
What use can lawfully be made
of valuation once found is not the
question here. The statute says that
valuation is to be made. The Court
of Appeals has said in this case that
the principal object is to provide q
rate mase-not the only object. Con-
gress did not say that rate-making
was the only purpose. Maybe Con-
gress wanted the information for its
own use"
Pending Six Years.
The appeal of the Potomac Electric
Power Company from the order of
the commission in 1917 and the in
junction by the company to prevent
the putting into effect of the rate of
s cents then fixed by the commission
has been pending for more than six
years. The late Justice Gould sus-
tanned the valuation placed on the
company's property by the commits
sion, but allowed the company an in
junction against the rate change on
condition that the company impound
the cents difference until final ad-
judication by the courts. This fund
now exceeds 100000.
The company appealed to the Dis
trict Court of Appeals and that tri-
bunal reversed the decision of Jus
tice Gould on the ground that the
commission had refused to take into
consideration reproduction cost at
the time of the rendering of its de-
cision. 1t remanded the case for
further proceedings not inconsist-
ent with this opinion" The Public
Utilities Commission sought a re-
view by the United States Supreme
Court, but that tribunal held it was
without jurisdiction. Application was
then made to Chief Justice Mccoy for
a revahation by the Equity Court.
were heard several months
ago and the chief justice has had the
matter under advisement.
The court was at the same time
asked by the company to vacate the
injunction order of Justice Gould re-
quiring impounding of a portion of
the company's receipts. In dispos-
ing of this application, Chief Justice
Mccoy sayss
''The injunction in the present case
was granted upon the case made by
the bill at time when the valuation
order by the express terms of the
statute had prima facie validity. The
decree in the valuation case entered
in this court upon the mandate of
the Court of Appeals is a. fact which
has not been brought into the pres
ent case in such manner that 1t Is
a fact of record in the pleadings
conditional because of some new fact
such action can be taken only on a
supplemental bill bringing in that
new fact. The valuation order, so
far as the present case is concerned,
still has prima facie validity
The situation being as stated, the
motion for a further modificat ton of
the Injunction must be granted and
the motion to vacate the injunction
must be denied, leaving the merits
of the application to be decided upon
a further hearing If any is made by
the power company upon filing
supplemental bill"
Holds Court May Act.
The chief justice reaches the de-
cision that the District Supreme
Court is entitled to review the com.
missions valuation. He points out
that the Court of Appeals. in it's
opinion, does not preclude such con-
sideration by the lower court, and a
fair construction Of the opinion leaves
the lower tribunal to consider the
matter. The chief justice says: rIt is
no. stated in the opinion that the
commission refused to take evidence
of increased reproduction costs. On
the contrary, the court states more
than once that there was such evil
dence before the commission.