Seward daily gateway., 1927-08-08
MORE O|V DECISION
fContinned from Page rhree)

tCOntinned rom rage lHTeSJ
 porationsl The city counsel must give notice Of a public hearing which may
 be continued from day to day. Public service corporations or individuals af
 fected shall have right to be present
 at the hearing, to be represented by
 counsel, to introduce evidence and compel the attendance of witnesses,
 and thereafter the council shall pro- ceed to regulate and fix rates by ordln-
 Hnce There is no provision requiring the cnnncil to adduct testimony.
 Notwithstanding that the alterations
 in question were struck from the com
 nlaint the appellant was permitted on
 the trial to furnish evidence as to the
 matters set forth therein. He testi-
 fled that he was present at the public hearings, that he tried to convince those who attended that the proposed rates were prohibitive and that he
 gave as reason for his conclusion the history of his business in regard to the meters that were then installed
 and had been installed for number of years. IL may be accepted, there fore, that on the trial he showed that
 at the hearings he testified fully as to his plant, his investment and his in-
 come and the grounds on which he claimed that the proposed rates would be confiscatory. We cannot agree that the facts so pleaded and shown in evidence furnished ground for i'm peaching the ordinance. The appel lant relies upon Nor. Pacific v. Dept.
 Public Works, 26S U. s. 39 where it
 was held that an administrative or der fixing railroad rates upon find ing without evidence, or made upon evidence that clearly does not support it, is an arbitrary act against which courts will afford relief. But here 1t
 cannot be said that the finding was made without evidence and 1t may be
 assumed that the proofs advanced by the appellant were scrutinized and that he was cross examined by the
 Common Council at the hearings
 which extended over three or four days The Common Council and the Mayor were not bound to accept his statements at their face value nor to agree upon the valuations which he placed upon his property, or to con
 clude from his testimony that the
 rates prescribed in the ordinance were insufficient to afford him fair return His business was not complicated nor
 was his plant extensive. He served a community of from 800 to 800 inhabi- tants, a community in which the mem bers of the council were his neigh
 bors and must have had as full knowl- ! edge of the extent and value of his l holdings and investments as could
 have been furnished by expert testi-
 mony. Doubtless all of them knew, as
 the court thereafter found, that con- siderable portion of the appellants in
 vestment for which he was claiming return was for property devoted to his ! individual use and the housing and support of himself and family and had
 no relation to the public service. The case is not unlike that of Brooklyn i Union Gas Co. V. Prendergast, Fed. 1 (2d) CPS, 669, where the court said:
 While the defendants called no ex-
 pert witnesses they did cross examine 1 the plaintiffs experts, and the court
 has a right to conaider the testimony
 given in the light of the cross exam l inatiOn and accord to Tit such weight
 as it deems proper" It is to be added
 that there is strong presumption in favor of the rates which were found.
 Darnell V. Edwards, PA U. s. 564.
 1 Upon the evidence the court. below found that the rates fixed by the ordi-
 nance were not confiscatory. That
 finding is, upon settled principles, bind ing upon this court unless it is clear 1 ly shown to be based upon obvious er-
 TOT of Jaw or upon a serious mistake or misconception of fact. We find in
 the record here no such ground for
 disturbing the finding. There was
 evidence tending to show that the pub
 lie service by the appellant had been
 inadequate and unsatisfactory and l that the rates charged were excessive.
 It was shown that in the year 1923 the i town voted bond issue for munich