The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1923-04-05
ELECTRIC co.
TAKES APPEAL
TO HIGH COURT
Hughes Electric Company
Files Brief Attacking Val.
idity of Commission Law
SUPPORTS WATER co.
Declares that Commission De.
cisiOn on Going Value Of
Water Co. Not Sound

Appeal to the supreme court in
its case to have declared uncOnSti-
tuiional the acts under which the
state railroad commission assumes
jurisdiction over public utilities,
was perfected today by the Hughes
Electric company of Bismarck, by
the filing of briefs in support of
their contention. The appeal is
from the Burlcigh district court
which held the acts were valid.
Many alleged defects in the laws
comforting powers over utilities are
put forward by attorneys for the
company in lengthy brief. These
include:
That the act deprives the electric
company Of property without due
process of law, in that it does not
provide "for a full and complete
hearing before judgment, with an
opportunity to present all compc-
tent and relevant evidence" and that
it does not permit a court in re-
view to exercise it's independent
judgment of the law and the facts.
That petitioners for a change in
utility rates arc not required to
present affirmative proof. thus
shifting the burden to the utility.
No Rules is Claim
That present railroad commission
has no set of rules of practice and
procedure. nor is it required to so
have by law. the brief declaring
''Thcrc is no criterion or. guide for
the utility or its counsel. 1t is Il
question of pot-luck."
That the method of proof is
wrong and inadequate.
That the legislature exceeded it's
authority in comforting both lcgiS-
lativc and judicial power on the
railroad commission.
That hearings may DC Limited,
and once rate is established pen
altics for violation are $50 on
crous as to amount to coercion OF
The utility and bar it from resort
to courts to protect itself against
coniiscation of its property.
That courts are, under the law.
limited from exercising independent
Judgment as to the lawfulneSs ana
rcasonablcncsS of valuations made
by the railroad commission"
Going Value Question
The Hughes Electric company
holds that the railroad commission
dealt unfairly with the Bismarck
Water Supply Company in it's ac-
tion in a recent case, that OF Logan
ct al against the water company,
for reduction in rates, in it's action
ON the question of going value"
II holds that the railroad commits
sion's Interpretation of the mean
ing of "uncarncd values" and "un-
earned increment" held to he syn
omonous by the commission, is a
forced construction.
In the recent decision in the Bis
marck Water Supply case the rail
road commission refused to allow
any amount for going value"
The brief holds it was the evil
dent intent of the legislature to
exclude "going value" from valun-
tions and that this is a fatal de-
feet i'm the law.
'The United States Supreme
Court has declared that going value
is a property right and must be
taken into consideration in deter
mining the final valuation of pub
lie utility property for rate-making
purposes" the brief asserts.
Hit Commission Action
''In the recent decision of the
commission, referred to supra, l.o-
gan ct. al \. Bismarck Water Sup
ply-Gompany." the brief says, "an
attempt is made by, the commission
to clear the terms going value and
good. will as synonymous for the
reason that it is generally conced-
ed that a utility is not entitled to
any additional value for good will
on account of the fact that it is a
monopoly and should not profit on
account of that fact. We respect
fully submit that this court will
not recognize such an interpreta-
tion of the meaning of going
value in view of the decision of the
supreme court of the United States
above cited and further, the fact
that the commission has in one or
two isolated cases, allowed value
for going value does not remedy
the defect in the act which pre-
cludes the commission from taking
such value into consideration. for,
as stated heretofore in this brief,
ii is what an act requires ito be
done or authorized and not what
the board sees fit to do Hereunder
that determines the constitutional
ity thereof"
The brief is filed by Edw. B. Cox
of Bismarck and Divet, Holt Frame
and Thorpe of Fargo.