Lincoln Gas & Electric Light Co. v. City of Lincoln

delivered the opinion of the court.

This case involves the validity of an ordinance regulating the appellant’s charges for gas furnished to consumers, and forbidding a charge in excess of one dollar per thousand feet. The bill assailed the rate as confiscatory,'and, therefore, a taking of property without compensation. The ordinance rests upon legislative power to regulate the charges of such public service companies.

The sufficiency of the price prescribed to produce a fair profit upon the value of the property employed in the business is to be strongly presumed. The burden of showing its confiscatory character rests, therefore, upon the complaining company.

The court below, upon a final hearing, held that the appellant had not made out its case and dismissed the bill, with leave to renew the litigation, if, upon actual^ operation under the ordinance, the returns upon its business should not prove reasonably remunerative. The ordinance was never put in force. Within a few days after it went into effect this bill was filed and an injunction, pendente lite, granted, which was continued in foree down to the final decree, and when this appeal was allowed, was, by order of the court allowing it, continued pending the appeal, under a bond conditioned to account for all over-charges if the ordinance should be sustained.

The case was not referred to a master, as is the usual course in such cases, although there was a great mass of conflicting evidence relating to the value of the plant, cost of operation and gross and net income. Neither did the court make specific findings of fact to which specific objection could be made. Such facts as may be said to constitute “findings'of fact” appear in the way of. large conclusions in the course of the opinion found in the record.

In this, as in every other legislative rate case, there are presented three questions, of prime importance: First, the present reasonable value of the company's plant engaged in the regulated business; second, what will be the probable effect of the reduced rate upon the future net income from the property engaged in serving the public; and, third, in ascertaining the probable net income under the reduced rates prescribed, - what' deduction, if any, should be made from the gross receipts as a fund to preserve the property from future depreciation.

The valuation fixed by the court is the main point of attack. That the company is entitled to a fair return upon the value of the property at the time of the inquiry, is the rule. San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 442.

. . The court, as one means of finding the present value of the gas-making plant, found that the .present cost of replacing it would.be $566,073.59. The items which enter into this valuation, and the reason for reaching this result, as stated in the opinion, are shown by the paragraphs here set out:

“In determining- for what amount the plant could be reconstructed, I have accepted in the main the testimony of complainant’s- witnesses as being the most satisfactory, and I find that'the plant could be reconstructed for the following Sums:

Coal gas apparatus.....'...$80,605 00

Water gas-apparatus......, ...... 29,278 00

Mains .in dirt streets........ ...... 90,578 00

Mains in paved streets........... 130,027 00

Gas services, etc. ................ 107,106 82

Gas meters in use................ 36,282 90

Meter connections............... 6,304 00

Piping for gas ranges. .... ...........' 16,500 00

$496,681 72

Engineering expenses (2J^%)...... 12,417 04

Real estate. ...................... 4,000 00

Present value of buildings......... 24,643 00

Contingent expenses in construction 25,000 00

Cost of organizing company. .. .. .... 3,000 00

$565,741 76

“While the evidence as to the depreciation is somewhat vague and indefinite, I think, upon the items ag gregating said $496,681.72, there should be deducted for depreciation 10 per cent, amounting to the sum of $49,668.17, making the total ■ present valuation of the plant $516,073.59; but it is apparent that, for the successful and economical operation of the plant, a certain amount of working capital is required. This amount I find to be $50,000, making the total value of complainant’s investment, upon which it is entitled to a reasonable return, $566,073.59.

“While it is true that the testimony shows that the complainant has not such working capital but has purchased upon credit the supplies necessary to operate, yet I think that, in deterinining what is a reasonable compensation, a working capital should be considered.”

But the appellant does not accept the valuation thus fixed. . It contends that there should be added to that the following:

Steam-boiler for water gas...'..... $2,225 00

Under-estimate of present value- of buildings.................. 10,000 00

Under-estimate of working capital.. 10,000 00

Under-estimate of meter connections 6,102 00

Under-estimate contingent expense of construction. ................ 37,500 00

Interest on idle capital during construction...................... 40,000 00

Promotion of business, or going value and franchise, as elements in replacement value.....;......... 100,000 00

205,852 00

Add court’s valuation............ 566,073 59

$771,925 59

The appellee, on the other hand, in support of the gen eral decree dismissing the bill, joins issue upon each of these items, and insists that if the court shall see fit to go into the evidence, it will find that the plant has been greatly over-valued. It particularly objects to the large item of $107,000 for gas service, and to the item of $50,000 added to the value of the property as “working capital,” find says that the incorrectness of this is seen in the admission that the appellant has in fact no such working capital engaged in the business. Appellee further contends that the “expense of operation”'in 1907 includes reconstruction or replacement work, and that such items enlarge the operating expenses of that year unduly and correspondingly reduce the net income. If the expense of operating the plant for that year is to be accepted as the standard by which the operating expenses of future years are to be estimated, the objection is serious if the facts are as claimed.

The appellant further claims that the sum of $8,000 deducted from the net income, as a permanent protection against future depreciation in the value of the plant, is too small, and should be much larger. Upon this there was conflicting expert testimony. Upon all of these questions of valuation and of operating expense there is much evidence, and much of it conflicting. The findings of the court, as before stated, are of too comprehensive a character to be of much help in dealing with the details which are embraced.

But it is urged that even upon the valuation fixed by the court the estimated future net income will be little over five per cent., and, in consideration of the character of the property and the high average interest rate prevailing in Nebraska, this is not a reasonable or fair return and demonstrates the confiscatory character of the ordinance. But if the $8,000 first deducted from the receipts and laid aside as a permanent fund to meet future depreciation be taken into account, the estimated future net income with the rate in force will exceed six per cent.

Nor did the Circuit Court hold that a net profit of five and two-tenths per cent, would be a fair and reasonable return upon the value of the property employed. What the court found was, in substance, that at least an income of that amount was certain, aside from the amount reserved for a permanent preservation fund. What the court said was this:

“While complainant, I think, is entitled to at least six per cent, upon the money invested, it does not appear, that the reduced rate would not yield that sum. It is quite probable that the reduced rate would considerably increase the consumption of gas and thus increase the complainant’s net profits.

“The record shows that in June, 1904, complainant voluntarily reduced its rates from approximately $1.50 per thousand to $1.20, and the amount of gas consumed, and' net profits resulting, considerably increased. The inquiry in cases of this character is not alone what has complainant theretofore earned but it is what will be the effect of the ordinance reducing the rate upon the futuré net earnings of the company, and it devolves upon complainant to show not that the past rates have not produced a reasonable return but that the rate prescribed by the ordinance will not in future produce a reasonable return.”

This case is full of difficult' and gravé questions. Such conclusions as to facts as are found in the court’s opinion are not helpful when, as here, errors are assigned which open, up substantially the whole case. The cause should have gone at the beginning to a skilled master, upon whose report specific errors could have been assigned and a ruling from the court obtained.

In the case of Chicago, M. &c. Ry. v. Tompkins, 176 U. S. 167, 179, 180, this court was called upon to review a decree upholding a state-made railroad rate which had been unsuccessfully attacked as confiscatory. In that case, as in this, the matter had not been referred to a master, but had been decided by the Circuit Court upon the^ whole of the evidence. It came to this court upon such a variety of questions of fact and law as to practically open up the whole case. Impressed with the seriousness of the questions involved this court remanded the case for a reference and report by a skilled master. As to this practice, this court said:

“The question then arises what disposition of the case shall this court make. Ought we t© examine the testimony, find the facts, and from those facts,' deduce' the proper, conclusion?

“It would doubtless be within the competency of this court on an appeal in equity to do this, but we are constrained to think that it would not (particularly in a case like the present) be the proper course to pursue. This is ¿n appellate court, and parties have a right to a determination of the facts in the' first instance by the trial court. Doubtless if such determination is challenged'on appeal it becomes our duty to examine the testimony and see if it sustains the findings, but if the facts found are not challenged by either party then this court need not go beyond its ordinary appellate duty of considering whether such facts justified the decree. We think this is one of those cases in which it is especially important that there should be a full and clear finding of the facts by the trial court. The questions are difficult, the interests are vast, and therefore the aid of the trial court should be .had.....We are of opinion that a better practice is to refer the testimony to some competent master, to make all needed computations, and find fully the facts. It is hardly necessary to observe that in view of the difficulties and importance of such a case it is imperative that the most competent and reliable master, general or special, should be selected, for it is not a light matter to interfere with the legislation of a State in respect to the prescribing of rates, nor a light matter to permit such legislation to wreck large property interests.”

The question as to what sum, if any, upon the facts of this case should be annually deducted from the net. income as a permanent maintenance or replacement fund, is novel and presents a grave problem.

Conflicting expert evidence has been introduced presenting radically different theories as to the necessity, character and amount of such a fund, and as to how it should be created, preserved and expended. Some of this evidence puts the sum to be annually deducted and set aside as a permanent fund at five per cent, upon the value of the plant at the time of deduction. It is obvious that if this view is sound there will be little or nothing of the net income left for distribution among shareholders, and no basis for legislative rate reduction now, and none likely until such time as the income from the permanent fund will keep up the plant. The work of reconstructing and replacing old parts by new in a plant of this kind must, in the very nature of things, be going on constantly. Heretofore it seems to have been so well and continuously done that the value of the plant as a whole has suffered less than one per cent, per annum if the total depreciation be distributed through thé more than thirty years of operation. So far as can be now seen, reconstruction and replacement charges have, up to the present time, been borne by current revenue, with the result that the revenue remaining in the single year of 1907 showed a net surplus of $73,851.83, a sum large enough, if distributed to shareholders upon the basis of the value of property engaged in the business as claimed by appellant, to have paid a dividend of ten per cent., and about. fifteen per cent, upon the valuation settled by the Circuit Court.

There is no finding as to the extent of the application of the revenue of 1907 to reconstruction or replacement, as distinguished from current repairs and operating expenses. It is, however, plainly inferable that the revenue of that year was used to the extent necessary. If, in the past, reconstruction and replacement charges have been met out of current expenses, the fact must be taken into consideration, both when we come to estimating future net income and in determining what sum shall be annually set aside to guard against future depreciation. This doubtless influenced the court below in settling upon the amount of $8,000 as a sufficient annual appropriation of income as insurance against future- depreciation. But if the constantly recurring necessity to do reconstruction or replacement work was in 1907 met out of the current income of that year, thereby diminishing the net income, the fact should be given weight in estimating future net income; otherwise there will be a double deduction on that account, first, by paying such charges as they occur, and thereafter by a contribution out of the remaining income for the same object.

The facts found are not full enough to at all justify this court in dealing with this problem of a replacement fund.

There should be a full report upon past depreciation, past expense for reconstruction or replacement, and past operating expenses, including current repairs. We should be advised- as to the gross receipts for recent years, and just how these receipts have been expended. Then the amount to be set aside for future depreciation will depend upon the character and probable life of the property and the method adopted in the past to preserve the property. ■ It can be readily seen that the amount to be annually set aside may be such as. to forbid rate reductions because of the requirement of such a fund. The matter is one first for a skilled master, who should make a full report upon the value of the property, the receipts and the expenses of operation and the sums paid out on- re construction and replacements, and in dividends in recent years.

For the reasons indicated, we direct that the decree be

Reversed, and the cause remanded to the District Court to refer the case to a competent and skilled master, to report fully his findings upon all of the questions raised by either party, separately, and with leave to both parties to take any additional evidence they may wish within a time to be fixed by the court, and that that ■ court upon such report proceed as equity shall require.

It is further ordered for the protection of all parties that the injunction granted in the court below continue in force until final decree there, upon condition that the appellant enter into a new bond, with sureties satisfactory to the court below, to account for all overcharges to consumers since the original restraining order in the event the ordinance shall be sustained, and that if such bond be not made within twenty days after the filing of the mandate that the injunction stand dissolved.