Petition to Review Order of Federal Power Commission.
Before BIGGS, MARIS, CLARK, JONES, and GOODRICH, Circuit Judges.
We are here concerned with a petition to review an order of the Federal Power Commission issued by it on June 11, 1940 allegedly pursuant to Section 20, Part I of the Federal Power Act.*fn1 The petitioner Safe Harbor Water Power Corporation, operates a hydroelectric power plant on the Susquehanna River at Safe Harbor, Pennsylvania, under a fifty year license issued to it in 1930 by the Federal Power Commission. Under a long term contract expiring in 1980, Safe Harbor sells all of the electrical energy created by it to its two parent companies, Consolidated Gas Electric Light and Power Company, of Baltimore, at Baltimore, Maryland, and the Pennsylvania Water and Power Company, of Holtwood, Pennsylvania. The two last named companies own all of the stock of the petitioner. We will refer to the Consolidated Gas Electric Light and Power Company as the Maryland Company and The Pennsylvania Water and Power Company as the Pennsylvania Company. The Maryland Company and the Pennsylvania Company are entitled to take electric power from Safe Harbor in the direct proportion of their respective stock ownerships; viz., the Maryland Company is entitled to two-thirds and the Pennsylvania Company is entitled to one-third of the electrical energy produced. The Pennsylvania Company in turn sells the electric energy which it purchases to the Maryland Company and others at wholesale.*fn2 The greater part of the electricity created by Safe Harbor goes into interstate commerce Though title to some of it passes from Safe Harbor to the Pennsylvania Company in Pennsylvania and is not in interstate commerce, we think that the assertion of the Federal Power Commission that the Safe Harbor hydroelecric project in Pennsylvania is operated as part of a large integrated interstate electric system is substantially correct.A goodly portion of the electricity manufactured by Safe Harbor enters Maryland and the District of Columbia.*fn3
The Commission fixed Safe Harbor'S wholesale rate for electricity on the statutory rate base of net investment prescribed for licensees by Part I of the Act. The rate base was found by the Commission to be $27,863,000 and the Commission allowed a 6% rate of return thereon, amounting to the sum of $1,672,000 in annual earnings for Safe Harbor above operating expenses, taxes, depreciation and rate case expense. The Commission's order requires Safe Harbor to reduce its annual wholesale rate for electricity by about $350,000 annually.
The petitioner raises questions which fall under three heads. The first is: Has this court jurisdiction to review the rate order made by the Commission under Section 20? Second: Is the order of the Commission reducing the licensees' rates invalid because made without jurisdiction and in disregard of the provisions of Section 20 of Part I of the Federal Power Act, 16 U.S.C.A. § 813? Third: Assuming jurisdiction to be vested in the Commission to make the order complained of, are the terms of that order confiscatory, arbitrary, or based on insufficient evidence?
As to the Jurisdiction of This Court.
The Commission issued an order on July 23, 1940 denying rehearing of the cause. Upon September 10, 1940, Safe Harbor filed a petition for review in this court under Section 313(b), 16 U.S.C.A. § 825l(b), and a bill for an injunction in the District Court of the United States for the Eastern District of Pennsylvania naming the United States and the individual members of the Commission as parties respondent pursuant to the provisions of Section 20 of the Federal Water Power Act of 1920, c. 285, 41 Stat. 1073, 16 U.S.C.A. § 813.The first question posed for our determination is whether this court or the District Court for the Eastern District of Pennsylvania has jurisdiction to review the order of the Commission.
Section 313(b), 16 U.S.C.A. § 825 l (b) provides that the aggrieved party to an order of the Commission may obtain a review of such order in the circuit court of appeals for the circuit wherein the licensee is lcated or has its principal place of business " * * * by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part." The subsection also states that upon the filing of the transcript the court of appeals to which the petition is filed shall have exclusive jurisdiction to affirm, modify or set aside the order of the Commission. The transcript in the case at bar was filed in this court upon October 1, 1940.
Safe Harbor contends in respect to the complaint filed by it in the District Court for the Eastern District of Pennsylvania that because Section 20 of the Federal Water Power Act of 1920, 19 U.S.C.A. § 813, provides that the persons subject to regulation "* * * shall have the same rights of hearing, defense, and review * * * " as railroad companies under the Interstate Commerce Act which includes the right of review specified by the Urgent Deficiencies Act, October 22, 1913, c. 32, 3, Stat. 208, 28 U.S.C.A. §§ 41 (subdivision 28), 43-48, the District Court possessed original jurisdiction to enjoin, set aside, annul or suspend in whole or in part the order of the Commission. Safe Harbor further contends that the District Court should have been constituted as a three judge court precisely as if it were reviewing an order of the Interstate Commerce Commission.
We entertain no doubt as was stated by the learned District Judge in his opinion in this case, Safe Harbor Water Power Corp. v. United States, 37 F.Supp. 9, 10, that prior to the enactment of parts II and III of the Federal Power Act in 1935*fn4 the District Court was the only forum available for the review of orders of the Federal Power Commission regulating rates. Section 313(b) of the 1935 Act, specifically provides for review of the orders of the Commission by the respective circuit courts of appeals. The District Court concluded that Section 313(b) did not repeal by implication the older review provisions of Section 20 and that an order of the Commission might be reviewed by the district court unless a certified transcript of the record before the Commission had been filed with the circuit court of appeals as in the case at bar. In the latter event, the district judge concluded, by reason of the provisions of Section 313(b) only the circuit court of appeals might review the order of the Commission. In short, the ruling of the court below was that while both the district court and the circuit court of appeals had jurisdiction to review an order of the Commission, the jurisdiction of the latter tribunal did not attach until a certified transcript of the proceedings before the Commission was filed with the circuit court of appeals and that when this was done the jurisdiction of the circuit court of appeals became exclusive and that of the district court to review the Commission's order necessarily terminated.
While it is the law that repeals by implication are not looked on with favor, United States v. Jackson, 302 U.S. 628, 631, 58 S. Ct. 390, 82 L. Ed. 488, none the less, conflicts and inconsistences between provisions of acts may necessitate such repeals. The conflict or inconsistency, however, must be plain and irreconcilable. United States v. Tynen, 11 Wall. 88, 20 L. Ed. 153; United States v. State of California, 297 U.S. 175, 56 S. Ct. 421, 80 L. Ed. 567; H. Rouw Co. v. Crivella, 8 Cir., 105 F.2d 434; Posadas v. National City Bank, 296 U.S. 497, 56 S. Ct. 349, 80 L. Ed. 351. In the case at bar the District Court held that the review provisions of Section 20 and Section 313(b) presented no indissoluble conflict. But Section 313(b) provides that the courts of appeals shall have "* * * exclusive jurisdiction to affirm, modify, or set aside [the] * * * order [of the Commission] in whole or in part." In Jackson v. Cravens, 5 Cir., 23, F. 117, 120, it was said that "* * * where a statute provides a new, specific, and complete remedy, and fully covers the subject-matter, the provisions of the [later] statute will be looked to alone, and resort will not be had to prior existing general remedies as cumulative." In the case at bar since Section 313(b) does provide a new and specific and complete remedy fully covering the subject matter, we conclude that the review given by the section just cited is "exclusive" and that the rreview provisions of Section 20 must be deemed to have been repealed by implication.
Two direct appeals were taken by Safe Harbor from the District Court to the Supreme Court; one was from the judgment dismissing the complaint entered by a single judge as distinguished from the judgment to like effect which might have been entered by a three judge court. The second appeal was from the order of the District Court refusing to vacate its judgment dismissing the complaint. The defendants argued before the Supreme Court that that tribunal had no jurisdiction upon direct appeal from the district court and, if the district judge's determination that the complaint did not state a cause of action requiring a threejudge court was correct, then the Supreme Court was without any appellate jurisdiction whatsoever.
The Supreme Court dismissed both appeals, Safe Harbor Water Power Corp. v. United States, 313 U.S. 546, 61 S. Ct. 1084, 1085, 85 L. Ed. 1512, and cited cases holding mandamus and not appeal to be the remedy when a three-judge should have been convened. It then referred to Section 313(b). If we are correct in our interpretation of this decision, we think that the Supreme Court intended to convey the thought that Section 313(b) deprived the district court of jurisdiction of the cause, but in arriving at such a conclusion the Supreme Court did not have to pass upon the question of repeal by implication ...