counsel, took such steps as were necessary to determine the reasonableness of the rates of the Edison Company and issued an order at C. 11108 ordering a temporary reduction. The Commission, by its counsel, took such legal action as was necessary to defend the order of the Dommission when that order was attacked in the District Courts of the United States and on appeal to the United States Supreme Court."
It is hardly necessary to cite authorities to sustain the proposition that, where all the beneficiaries are represented, attorneys representing certain individuals among them may not be granted allowances out of the fund. However, Peoples-Pittsburgh Trust Co. v. Pittsburgh United Corporation, 334 Pa. 107, 5 A.2d 890; Penington v. Commonwealth Hotel Construction Corp., 18 Del.Ch. 238, 158 A. 140; General Finance Corp. v. New York State Rys., D.C., 3 F.Supp. 975; In re United Cigar Stores Co. of America, D.C., 21 F.Supp. 869, 875, may be referred to.
As to the merger proceeding, I am unable to see any possible theory upon which the attorneys could be allowed fees for services in it. The protest was not primarily directed toward the reduction of rates or the creation of a fund thereby, and the disapproval of the merger had no such effect. It cannot be seriously argued that, because an attorney in one proceeding presses a suggestion which brings on an entirely different proceeding for the recovery or protection of a fund, he is on that ground alone entitled to charge counsel fees against the fund, if not otherwise entitled to do so.
There is no suggestion that these attorneys ever had any contractual or professional relations with any consumer other than the members of the Consumers League, and, as to that group, the understanding was that it was not to bear more than a proportionate share (if that much) of the costs of legal services. Thus it will be seen that this petition is not presented in order to distribute a burden incurred by the petitioners, among the beneficiaries of their action, but, in substance, is an attempt by the attorneys to compel payment of their fees by some 30,000 persons and corporations none of whom every made any agreement to pay them anything, and only 50 or 60 of whom ever authorized them to act at all in the matter.
In the recent case of Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 59 S. Ct. 777, 779, 83 L. Ed. 1184, discussion was confined to what were known as costs "between solicitor and client," as distinguished from costs as "between party and party." The Court was dealing with the power of the chancellor to allow such costs on the principle of a benefit, by virtue of the rule, stare decisis, to other similarly situated parties. The Court did not suggest what fees were allowable, and it is more than doubtful whether it intended to sustain the power in respect of anything but fees for legal services incurred by the petitioner in that case. As has been pointed out, these petitioners themselves are under no liability to the attorneys in respect of legal services, and, consequently, there are no costs as between solicitor and client. Even if the general consumers had not been adequately represented as to this particular matter, I do not think that the rules laid down in Sprague v. Ticonic Nat. Bank, supra, are broad enough to allow the fee to be charged to the fund.
The Commission also urges as a reason for denying the prayer of the petition that the efforts of these attorneys were not in fact directed toward the creation of any fund, and cites Eckford v. Borough of Atlanta, 173 Ga. 650, 160 S.E. 773, a case almost exactly in point. The fund (if there really be any fund at all in the proper sense) came into existence by the fortuitous circumstance that the reductions ordered were not allowed to go into effect for a year and a half, because of the interposition of injunctions. Whether the decision in Sprague v. Ticonic Nat. Bank, supra, overcomes this particular objection need not be decided, because I think the decision is already on a sound basis.
I cannot see that the inclusion of interest in the order of this Court distinguishes the services in respect of it sufficiently to permit me to allow compensation. The order of the Commission of November 13, directed the Power Company to "make complete refunds," and included a clause that it was without prejudice to the award of further refunds. Whether or not that is an express order to pay interest on the overcharges, the Power Company does not, and, so far as I know, has not at any time since the order, denied its liability for interest. I do not question counsel's statement that the question is expressly raised for the first time in the first of the two petitions now before the Court, but it does not appear that the interests of the general consumers have not been already fully protected by an order requiring complete refunds, inasmuch as the law is well established that it is within the power of the Court (if not the Commission as well) to award interest on retained overcharges.
The petition for allowances is dismissed.
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