Opinion
Nos. 23864 and 23868
Decided November 27, 1934.
Public Utilities Commission — Valuation for rate-making purposes — Proceedings remanded to fix rate in accordance with United States Supreme Court opinion.
ERROR to the Public Utilities Commission.
Mr. Edward C. Turner, Mr. Albert M. Calland and Mr. John Weld Peck, for The Columbus Gas Fuel. Company.
Mr. John W. Bricker, attorney general, and Mr. Donald C. Power, for The Public Utilities Commission.
Mr. John L. Davies, city attorney, and Mr. James W. Huffman, for the City of Columbus.
It appearing to the court that on June 18, 1934, there was filed in the clerk's office of this court the mandate of the Supreme Court of the United States, in words and figures, as follows:
"United States of America, ss.: The President of the United States of America — To the Honorable Judges of the Supreme Court of the State of Ohio, Greeting:
"Whereas, lately in the Supreme Court of the state of Ohio, before you, or some of you, in consolidated causes between The Columbus Gas Fuel Company, plaintiff in error, and The Public Utilities Commission of Ohio (The City of Columbus, Henry W. Worley, mayor), defendants in error, No. 23864; The City of Columbus, Ohio, plaintiff in error, and The Public Utilities Commission of Ohio (The Columbus Gas Fuel Co.), defendants in error, No. 23868, wherein the judgment of the said Supreme Court, entered in said causes on the twenty-first day of June, A.D. 1933, is in the following words and figures, viz.:
" 'This cause came on to be heard upon the transcript of the record of the Public Utilities Commission of Ohio and was argued by counsel. On consideration whereof, it is ordered and adjudged by this court that the order of the said Public Utilities Commission of Ohio be, and the same is hereby reversed for the reason that the rate of 55 cents per thousand of cubic feet of gas as fixed by said commission is unlawful and unreasonable and for the further reason that the rate of 48 cents per thousand cubic feet provided in the ordinance adopted by the city of Columbus is not unlawful nor unreasonable. And said cause is hereby remanded to the said Public Utilities Commission of Ohio for further proceedings and orders not inconsistent with this entry.
" 'Ordered, that a special mandate be sent to the Public Utilities Commission of Ohio, to carry this judgment into execution.'
"And whereas on March 30, 1934, the following order on motion for clarification of judgment was entered in said causes by the Supreme Court of the state of Ohio:
" 'This cause came on to be heard upon the motion of The Columbus Gas and Fuel Company for clarification of the judgment entry heretofore made in this cause, and was argued by counsel. Upon consideration whereof it is ordered and adjudged that said motion be, and the same hereby is, overruled, except as hereinafter stated.
" 'It is further ordered that the judgment entry of this court made herein on June 21, 1933, be, and the same hereby is, corrected and modified to read as follows:
" 'This cause came on to be heard upon the transcript of the record of the Public Utilities Commission of Ohio and was argued by counsel. On consideration whereof, it is ordered and adjudged by this court, that the order of the said Public Utilities Commission of Ohio be, and the same hereby is, reversed for the reason that the rate of 55 cents per thousand cubic feet of gas, as fixed by said commission, is unlawful and unreasonable, and for the further reason that the rate of 48 cents per thousand cubic feet provided in the ordinance adopted by the city of Columbus is not unlawful nor unreasonable. And this cause is hereby remanded to the Public Utilities Commission of Ohio, forthwith to fix said forty-eight cent rate in accordance with this entry.
" 'Ordered, that a special mandate be sent to the Public Utilities Commission of Ohio, to carry this judgment into execution.
" 'The court orders that this order be now entered by the clerk of this court upon the journal of this court as of the date of June 21, 1933.'
"as by the inspection of the transcript of the record of the said Supreme Court, which was brought into the Supreme Court of the United States by virtue of an appeal sued out by The Columbus Gas and Fuel Company whereon the Public Utilities Commission of Ohio and the City of Columbus, Ohio, were made the parties appellee, agreeably to the act of Congress, in such case made and provided, fully and at large appears.
"And whereas, in the present term of October, in the year of our Lord one thousand nine hundred and thirty-three, the said cause came on to be heard before the Supreme Court of the United States on the said transcript of record, and was argued by counsel:
"On consideration whereof, it is now here ordered, adjudged, and decreed by this court that the decree of the said Supreme Court, in this cause be, and the same is hereby, reversed with costs; and that The Columbus Gas Fuel Company recover against the Public Utilities Commission of Ohio and the City of Columbus, Ohio, eight thousand nine hundred and three dollars and twenty-seven cents for its costs herein expended and have execution therefor.
"And it is further ordered that this cause be, and the same is hereby, remanded to the said Supreme Court for further proceedings not inconsistent with the opinion of this court.
"May 21, 1934.
"And the same is hereby remanded to you, the said judges of the said Supreme Court of the state of Ohio, in order that such execution and further proceedings may be had in the said cause, in conformity with the judgment and decree of this court above stated, as, according to right and justice, and the Constitution and laws of the United States, ought to be had therein, the said appeal notwithstanding.
"Witness the Honorable Charles E. Hughes, chief justice of the United States, the sixteenth day of June, in the year of our Lord one thousand nine hundred and thirty-four.
"Charles Elmore Cropley,
"Clerk of the Supreme Court of the United States,
"By Hugh W. Barr,
"Deputy."
It is therefore ordered and adjudged, by this the Supreme Court of Ohio, that these proceedings be remanded to the Public Utilities Commission for further proceedings to fix a rate in accordance with the opinion of the Supreme Court of the United States.
It is further ordered that the plaintiff in error, The Columbus Gas and Fuel Company, recover from the defendants in error, the Public Utilities Commission of Ohio and the City of Columbus, its costs expended in the Supreme Court of the United States, amounting to eight thousand nine hundred and three dollars and twenty-seven cents, as above stated, and its costs in this court expended, as taxed in this mandate.
Decree accordingly.
WEYGANDT, C.J., JONES, MATTHIAS and BEVIS, JJ., concur.
WILKIN, J., not participating.