as amended september 22 1945: September 11, 1945.
LOWNSBURY ET AL.
SECURITIES AND EXCHANGE COMMISSION, ET AL.
Before BIGGS, MARIS, and GOODRICH, Circuit Judges .
GOODRICH, Circuit Judge .
This case arises upon the motion of the Securities and Exchange Commission to dismiss the petition of certain stockholders of The Commonwealth & Southern Corporation for review of present orders*fn1 of the Commission, respondents, and to dismiss a motion, also made by the same petitioners, for a stay of all proceedings, pending review by this Court. The controversy centers upon interpretation of two sections of the Public Utility Holding Company Act of 1935*fn2 in relation to court review of the corporation's reorganization plan.
The primary question involved is whether this Court is the proper forum to test the Commission's orders pursuant to Section 24 (a)*fn3 of the Act, as petitioners allege, of whether the District Court is the proper forum pursuant to Section 11 (e)*fn4, as the Commission alleges.
The orders of the Commission are expressly stated not to be deemed operative to authorize any of the transactions contemplated by the plan until a District Court has entered an order enforcing the plan. The orders also condition the effectiveness of the plan upon its approval by vote of the corporation's shareholders, prior to submission to a District Court. The orders are then, argues the Commission, interlocutory and general review provisions, in a statute, as to agency orders do not apply to those which are merely interlocutory. Federal Power Commission v. Metropolitan Edison Co., 1937, 304 U.S. 375, 58 S. Ct. 963, 82 L. Ed. 1408.
The conditional nature of the Commission's order is apparently a method of so framing its mandate as to avoid the seeming inconsistency involved in sections 11 (e) and 24 (a) of the statute. If effective, an orderly review following Commission action is provided for through District Court, Circuit Court of Appeals, and possibly Supreme Court, in proceedings in which all parties in interest may be participants. The very question before us as to effectiveness of the device was before the Second Circuit in a case, which while showing some difference on facts, presented no difference in legal question which we can see. Okin v. Securities and Exchange Commission, 2 Cir., 1944, 145 F.2d 206, remanded as to a point not relevant to our question 1945, 325 U.S. 840, 65 S. Ct. 1569.
The Second Circuit took squarely the position the Commission contends for here. In support of its conclusion, the Court stressed the significance of the express provision for general review in § 11 (b) and its omission in § 11 (e); "the practicalities of the situation"; and "the legislative history of the Act, evincing a Congressional intent that the relationship of the Securities and Exchange Commission and the district court provided for in § 11 should be 'exactly' the same as that of the Interstate Commerce Commission and the district court in railroad reorganization under § 77 of the Bankruptcy Act, 11 U.S.C.A. § 205." [145 F.2d 208.]
We think this decision is completely in point and that it discusses the problem thoroughly, reaching a result which we believe to be correct. No object would be served in repeating what has been so adequately discussed in that opinion.
The petition for review of the orders of the Securities and Exchange Commission is dismissed and the motion for stay of proceedings denied.
BIGGS, Circuit Judge (concurring).
The modified plan submitted by the Commonwealth & Southern Corporation under Section 11 (e) of the Public Utility Holding Company Act of 1935, 15 U.S.C.A. § 79k (e), has been found by the Securities and Exchange Commission to effect compliance by Commonwealth with the requirements of the Commission's order of April 9, *fn19421 entered pursuant to the provisions of Section 11 (b) (2) of the Act, 15 U.S.C.A. § 79k (b) (2). The Commission has entered its order of June 30, 1945 approving the plan and its later order of July 18, 1945 denying rehearing. These are the orders which the petitioners, common stockholders of Commonwealth, seek to have reviewed by this court pursuant to the provisions of Section 24 (a) of the Act, 15 U.S.C.A. § 79x (a). The merits of the plan are not before us. We are concerned first with the question of whether this court is the proper forum for the review of the Commission's orders and second, with the question of the petitioners' application for a stay of all other proceedings. If the answer to the first question is in the negative, no stay may be granted.
The Commission takes the position that this court is without jurisdiction to review the decision of the Commission, pointing out that effectuation of Commonwealth's plan is conditioned by the terms of the Commission's order upon approval by a majority of each class of stock affected and by a district court of the United States pursuant to Section 11 (e) of the Act; that since the order is so conditioned the petitioners are not "aggrieved" by it within the purview of Section 24 (a); that the right of the petitioners to test the question of whether the plan is fair and equitable and appropriate to effectuate the provisions of Section 11 must be tried in a district court. The plan has not yet been submitted to a district court and the Commission states that it will not submit the plan unless it is approved by the stockholders.
If the various subsections of Section 11 be scrutinized the following appears. Subsection (a) provides that it shall be the duty of the Commission to examine the properties of public utility holding systems subject to the Act to the ends of integration and simplification. Subsection (b) provides that the Commission shall compel the integration and simplification of public utility holding-company systems by its orders. Subsection (b) also contains express language providing for judicial review of the Commission's order pursuant to Section 24. Subsection (b) of Section 11 is the policy effecting clause of the statute and deals with integration and simplification, not with the rights of the individual investors as such. The words "fair and equitable" are not used in subsection (b) and the word "plan" does not appear therein except in connection with the distribution of voting power. This conception was expressed by this court in Commonwealth & Southern Corporation v. Securities and Exchange Com'n, 3 Cir., 134 F.2d 747, *fn7512 There may be in fact no definite "plan" in the Commission's mind when it makes orders of divestment. There may be no identification of the single integrated system or additional systems which may be retained.See United Gas Improvement Co. v. Securities and Exchange Com'n, 3 Cir., 138 F.2d 1010, 1016 and Engineers Public Service Co. v. Securities and Exchange Com'n, 78 U.S. App. D.C. 199, 138 F.2d 936.
If the holding company refuses to comply with the Commission's orders in accordance with subsection (c), 15 U.S.C.A. § 79k (c), the Commission may apply to a court in accordance with Section 11 (d), 15 U.S.C.A. § 79k (d) to effect compliance by the means provided by Section 18 (f), 15 U.S.C.A. § 79r (f). Subsection (d) also speaks of a plan, providing that when a district court has taken jurisdiction the court may dispose of the assets of the holding company "in accordance with a fair and equitable reorganization plan" approved by the Commission.
The function of subsection (f) is plain. It provides, as has been indicated, that if a plan of reorganization be proposed for a public utility holding company within the terms of the Act, already made subject to the jurisdiction of a district court because of the refusal of the company to comply with an integration or simplification order, the plan must be approved by the court.But it also provides a method for approving a plan when a district court has taken jurisdiction of the holding company under some statute other than the Holding Company Act. Proceedings pursuant to Section 77B or Chapter 10 of the Bankruptcy Act as amended, 11 U.S.C.A. § 207 or § 501 et seq. afford an example. The court in all these cases must determine whether or not the plan of reorganization submitted to it is fair and equitable. If the plan is to be approved the court must determine also that the provisions of the plan will effect the policies embodied in the Act. See In re Midland United Co., D.C. Del., 58 F. Supp. 667. In Gilbert v. Securities and Exchange Com'n, 146 F.2d 513, the Circuit Court of Appeals for the Seventh Circuit dismissed petitions seeking review by that Court pursuant to Section 24 (a) of orders of the Commission approving the plan for the reorganization of Midland United Company and Midland Utilities Company after the plan had been approved by the District Court of Delaware pursuant to Section 174 of the Bankruptcy Act, 11 U.S.C.A. § 574. The Circuit Court of Appeals held that the petitioners were not aggrieved because the orders of the Commission approving the plan were only interim orders. Additional ground on which to base the decision can be found in the legislative history of subsection (f)*fn3, fortified by the authority of Chicago & N.W. Ry. Co. v. United States*fn4, 52 F. Supp. 65, affirmed per curiam by the Supreme Court in 320 U.S. 718, 64 S. Ct. 369, 88 L. Ed. 422. There is a purposeful dichotomy in subsection (f). It makes no reference to integration of public utility holding systems and does not by its own terms require a plan to be fair and equitable. The duty to determine whether a plan is fair and equitable and to approve a plan only if it be such, is laid upon the district courts by reference to Section 11 (d) of the Public Utility Holding Company Act or to some other statute conferring original jurisdiction upon the court in a particular proceeding. It seems apparent, therefore, that an order made by the Commission in aid of a proceeding under subsection (f) is in the nature of an advisory*fn5 or preliminary order and would not be reviewable under Section 24 (a).
But the important factor insofar as the review machinery of Section 11 is concerned is that Congress intended that if the holding company came into a district court of the United States and jurisdiction was acquired by that court because of the failure of the company to obey the integration or simplification orders of the Commission or by virtue of the provisions of some other federal statute or law*fn6, that court should adjudicate all questions relating to integration, simplification and the fairness and equity of the plan. In other words it was the intention of Congress if jurisdiction was vested in a district court, that that court and not a circuit court, should pass on the plan and determine and execute the course necessary for the integration and simplification of the holding company structure. See the language of subsection (d), "* * * the trustee with the approval of the [district] court shall have power to dispose of any or all of such assets and, subject to such terms and conditions as the court may prescribe, may make such disposition in accordance with a fair and equitable reorganization plan which shall have been approved by the Commission after opportunity for hearing."
To come now to subsection (e).It is clear that Congress intended public utility holding companies to have the opportunity to submit their own plans to effectuate the provisions of subsection (b) of Section 11. If the Commission approves the plan submitted by a holding company as adequate to effectuate the provisions of subsection (b) and as "fair and equitable" to the persons affected by it, at the request of the company the Commission may apply to a district court to enforce and carry out the provisions of the plan. If the court finds the provisions of the plan to be "fair and equitable and * * * appropriate to effectuate the provisions of section 11," the court shall order the plan to be carried out. If the court had not been required to determine whether or not the provisions of the plan were "appropriate to effectuate the provisions of section 11," it is clear that the duty of the district court would lie solely in determining whether or not the plan was fair and equitable to the persons affected by it and the district courts would not be compelled to concern themselves with the questions of policy presented by subsection (b). Since the words "appropriate to effectuate the provisions of section 11" are used they must be given their natural meaning and since integration and simplification are the prime objectives of subsection (b), a district court must pass on all questions of integration and simplification presented as well as on the fairness of the plan.
The provision of subsection (e) that the Commission at the request of the holding company "may apply" to a district court to carry out the plan should be deemed to be of mandatory effect. In other words if the Commission approves the plan submitted by the company and is requested by the company to apply to a district court to enforce and carry out the plan in my opinion the Commission must take the requested action. The approval of the plan by the Commission plus the request that the Commission apply to a district court to enforce it and to carry out its provisions should be deemed to have the effect of "fixing" or "reserving" jurisdiction in a district court. The fact that the effectuation of the plan in the case at bar depends on the approval of the stockholders and of the district court aids this view for the Commission's order is inoperative until the conditions are met.
I can perceive no more reason for holding that a security holder may avail himself of the review provisions of Section 24 (a) when the company has filed a Commission approved plan under subsection (e) of Section 11 than for holding that the security holder is entitled to such a review when a plan approved by the Commission is filed under subsections (d) or (f).It is clear that Congress did not intend that a security holder should have the right to a Section 24 (a) review of an order of the Commission approving a plan submitted to a district court pursuant to the provisions of subsections (d) or (f).
The method, technique or device adopted by the Commission in the instant case in conditioning its order as indicated seems proper and well within the procedural field allotted to the Commission by Congress. Certainly the device adopted can do no harm to the rights of a security holder. The interpretation of subsection (e) by the Commission is entitled to great weight since it is the agency charged by Congress with the administration of the Public Utility Holding Company Act. The fact that subsection (b) expressly provides for a Section 24 (a) review while subsections (d), (e) and (f) do not, is also very persuasive. Cf. our decision in Marquis & Co. v. Securities and Exchange Com'n, 134 F.2d 822 and the circumstances of the cited case.
For these reasons I concur in the decision of the court.