Motion to Dismiss Appeal — Los Angeles v. Public Util. Comm'n of Cal.

SUPREME COURT. U. S. FILED |

| | FEB 18 195

Supreme Court of the United States os

JAMES R. BROWNING, Clerk

OcToBER TERM, 1958

No. 656

™

THe City or Los ANGELES, a municipal corpo-

ration, the Crry or Lona Breacu, a municipal

corporation, RoGeER ARNEBERGH And WaLurrep

JACOBSON

; Appellants,

VS.

Tur Prvauc Urmirres ComMissiox oF THE

‘ me) 1 x >

State oF CattrorNiA, and C. Lyn Fox, PETer

EK. MitcuHett, MattHew J. DooLry, THEODORE

H. Jenner and Everett C. McKeacre, as

members of and constituting the said Publie

Utilities Commission,

Appellees.

4

On Appeal from the Supreme Court of the State of California.

MOTION TO DISMISS APPEAL.

ArtTHUR T’. GrorcE,

140 New Montgomery Street, San Francisco 5, California,

Francis N. MARSHALL,

225 Bush Street, San Franciscc 4, California,

Attorneys for The Pacific Telephone and

Telegraph Company, Appellee.

JouHN Rospert JONES,

Beacon Building, 50 West Gay Street, Columbus 15, Ohio,

Attorney for General Telephone Com-

pany of California, Appellee.

ALVIN HH. PELAVIN,

300 Montgomery Street, San Francisco 4, California,

Attorney for California Water d& Tele-

phone Company, Appellee.

Warren A. PALMER,

405 Montgomery Street, San Francisco 4, California,

Attorney for Sunland-Tujunga Telephone

Company, Appellee.

OLB PEO LE

Page

ee al oe tice akan es aaeeue ese 1

ee eel ce eee da ers 2

ee ee Sn nc enckdedens ee ieoevanweeed ns 3

a 5 Ss bad a eal Me Ow kw hee eee es +

ae hae. Gay bce ee spe k aes pa be ee ORROES 6

I. Appellants have no standing to urge their claims in

uae gen eu waders ee <a ene om ‘vendikeedes 6

ee CU bia) urate eceeeaN ed onebeens exurs 6

1. The cities have no right which they may invoke

under the Federal Constitution against the

legislative action of their parent state or its

duly constituted agent, the Public Utilities

rn ae ae rl we aap awke wands §

2. The cities have no standing to assert the con-

stitutional claims of others ................. 8

B. The city attorneys as individuals ............... 10

1. Not having established in the record any

interest in their individual capacities as to

which they now claim their constitutional

rights have been infringed, the city attorneys

have no standing to make such claim in this

ea a lenid Sine a Sunnie eure eae oa 9 10

2. Under California law, the city attorneys as

individuals had no standing to seek a writ of

review, the denial of which is the subject of

their present appeal. As to them, therefore,

the judgment rests on an adequate nonfederal

CE Shite vce Gkhe bain sears er oee ures il

3. The two city attorneys have no standing to

urge the constitutional claims of other indi-

I 8s eG i NS aoe Co eaaeee Phe ks 13

SQQVEAY VE WUEEWEIEO

II. The final order of the Commission, determining that

the interim rate relief was justified and affirming and

li TABLE or CONTENTS

Page

making permanent the rate increases fixed therein,

US TG GE EE on ans wc coe deanséeeesencces 13

III. The appellant cities actually appeared in the proceed-

ings before the Commission which culminated in the

challenged order, and were given full opportunity to

and did participate in the various phases of these

proceedings, including cross-examination and argu-

ment. There is no factual basis for their claim that

they were denied adequate notice and hearing ........ 16

A. Appellants have produced no record to contradict

the Commission’s determination that due notice

ee a 16

B. The appearances of appellant cities by the appel-

lant city attorneys in the Commission proceedings

waived any objection to the adequacy of notice 19

IV. In any event the appellants have no constitutional

right to notice and hearing, before the Commission

was entitled to make its order increasing telephone

yates Ot amt MbetEA DOE igo cc cc ccdvencdtcevcseses 19

CIN hoo atin da oie edd sues seen es OE 26

peaetoe

Table of Authorities Cited

“ases Pages

B

Bayard v. Lombard, et al., 9 How. (50 U.S.) 530.......... 13

Borough of Edgewood v. Wilkinsburg & East Pittsburgh

Street Railway Company and Borough of Edgewood v.

Publie Service Commission of the Commonwealth of Penn-

IE TE Be EN os oi 6h eos oa ene waeaeeeaks 7

Boston Real Estate Bd. v. Department of Public Util., 334

De, ATi. Se Pe iv cos ca wadee ccnceastaxeeaes 23

Cc

Champlin Rfg. Co. v. Commission, 286 U.S. 210.......... 15

Childs v. Brooklyn Edison Co. of N.Y., 105 N.Y.S.2d 503.. 23

City of Atlanta v. Georgia Ry. & Power Co, 149 Ga. 411,

We i aa os sw eke ea eee a ee eee 22

City of Bartlesville v. Corporation Commission, 82 Okl. 160,

Se I recs Gacuk as beve chan svaesehceiks caecase 22

City of Birmingham v. Southern Bell Tel. & Tel. Co., 234

cS & 2 & Beer rrr ee terre 22

City of Chicago v. Chicago Railways Company, 257 U.S. 617 8,9

City of Hillsboro, Oregon v. Public Service Commission of

UU, Te Ti TD ck kev ecdhccasewksenesnecavaeeceses 8

City of New Haven v. New Haven Water Co., 132 Conn.

ee eB eer errr rr rerre 22

City of Sapulpa v. Oklahoma Natural Gas Company, 258

SI EE ox ska k ee edhe nee ees + aadateuh bene ese reses 8,9

City of Winfield v. Court of ladustrial Relations, 263 U.S.

aa io kc Naa ee eES ee ee Cae A Ce aS RRS eo

Consumers’ Gas Co. v. Corporation Commission, 95 Okl. 57,

Oe eG leeks ey bc ceed wa 406050 8s 450d oa eReees 22

Cronin v. Adame, 198 U.S. 106.......cccccccccccrecvesecs 8

D

De Saussure v. Gaillard, 127 U.S. 216.........-.0.--.000- 13

Detroit &. Ry. v. Osborn, 189 U.S. 383.................. 19

Doty v. Love, 295 U.S. 64 2... cece cece see eneeccceccees 19

iv TABLE OF AUTHORITIES CITED

: E Pages

Edward Hines Trustees v. U.S., 263 U.S. 143............. 18

Ex parte Leaf Tobacco Board of Trade, 222 U.S. 578...... 13

F

Funeral Dir. Assn. v. Bd. of Funerai Dirs., 22 Cal.2d 104,

ee 55 db bd eee eee eee ede ewe eee nas keene 12

G

Gateway City Transfer Co. v. Public Service Commission,

ee Se ef Err tr TTT ere er 21

H

Hanlon v. Eshleman, 169 Cal. 200, 146 Pac. 656.......... 9

* Fe =e UR Re ST Ter eee ee 23, 25

I

Den Te SO. Be a Oe baa sss eee cenevacesvetoneens 25

K

Kansas City v. Public Service Commission of Missouri, 250

SEE wis shod ees bes haa 66 Oh week ROOETE CONS 00s 8

L

Lampesns ¥. Bell, 160 U.5. BIG 2... ccscnccecesccccccees 8

Leaf Tobacco Board of Trade, Ex parte, 222 U.S. 578...... 13

Lenihan v. Tri-State Telephone & Telegraph Co., 208 Minn.

eG eer errr rr err eee 22

Re Se Ie PN ck ok vac eessensccdecenes 13

M

ee ee ee ob os hose debe ed ese cesene’ 24

Market Street R. Co. v. Comm’n, 324 U.S. 548............ 17

McCormick v. Westchester Lighting Co., 141 Mise. 261, 252

| ar errant See ee ee 23

Midland Co. v. K. C. Power Co., 300 U.S. 109 ........... ae

Miss. Valley Barge Co. v. U.S., 292 U.S. 282 .............. 18

SABLS UP AU LaVanrdenn Vos

: N Pages

Napa Valley Co. v. R. R. Comm., 251 U.S. 366 ............ 12

Nashville Ry. v. Tennessee, 262 U.S. 318 ................. 18

Newark v. New Jersey, 262 U.S. 192 .............0cceeee 7

New York City v. N. Y. Tel. Co., 261 U.S. 312 ............ 9

O

Oe i wicrcele cake cebverssevece 25

P

Pacific Tel. Co. v. Kuykendall, 265 U.S. 196 .............. 15

Pacific Telephone Etc. Co. v. Eshleman, 166 Cal. 640, 137

eS eae Pet eaten vat css i sn<xe 9

Panama Refining Co. v. Ryan, 293 U.S. 388 .............. 24

Pawhuska v. Pawhuska Oil’ Co., 250 U.S. 394 ......... 7, 9, 10, 16

Pcople v. Hadley, 66 Cal.App. 370, 226 Pac. 836.......... 12

People v. Western Air Lines, Inc., 42 Cal.2d 621, 268 P.2d

ee ee ia aa ne ena e ees 12

People of the State of Michigan ex rel. Alex. J. Groesbeck,

Attorney General v. Detroit United Railway, 257 U.S. 609 8

Posner v. Anderson, 298 U.S. S81.........cccccccccccces 13

Premier-Pabst Co. v. Grosscup, 298 U.S. 226 ............. 8

R

R.R. Comm’n v. Los Angeles R. Co., 280 U.S. 145 ......... 7

Risty v. Chicago, R.I. & Pace. Ry. Co., 270 U.S. 378 ....... 7

Re Gy I NE ie Be oo ec ccc ee cecsvoeeecccccess 13

S

Sale v. Rcilroad Commission, 15 Cal.2d 612, 104 P.2d 38 ... 9

Ee W, SN, Be Gs OF ov ccd ccccsescvecccevesveses 15

Smith v. Ill. Bell Tel. Co., 270 U.S. 587.................. 9

Southern Pacifie Co. v. Publie Utilities Commission of Cali-

ns ene ebe ea etyee sent teeectaeeses z

Southern Railway Co. v. King, 217 U.S. 524 ....... ae 11

State of Missouri at the Relation of City of Sedalia v. Public

Service Commission of Missouri, 251 U.S. 547 ........... 8

vi TABLE OF AUTHORITIES UITED

Pages

Standard Stock Food Co. v. Wright, 225 U.S. 540 ........ 11

State v. Mountain States Tel. & Tel. Co., 54 N.M. 315, 224

We ER ecb ceebindcscdbakd cue bewe wets eCeseeécasei és 22

State v. Municipal Corporations of Scotland Neck, 243 N

Be ee NE FAN aA cise b ws ccbrshersicvecs vanes 23

State v. Rawlings, 229 Ind. 552, 99 N.E.2d 597 ........... 21

T

Ten Ten Lincoln Place v. Consolidated Edison Co., 190 Misc.

i enh ueice vedi akadivensudeseeeenss 23

Tileston v. Uliman, 318 U.S. 44 ........ ccc cee ee eee 8

Trenton v. New Jersey, 262 U.S. 182 ............... ce eee 7

U

Union Dry Goods Co. v. Georgia. Public Service Corp., 145

Oe rete s cuales. bccceedevencecesess 22

United Gas Co. v. Mobile Gas Corp., 350 U.S. 332 ......... 24

United States v. Merchants &c. Ass’n., 242 U.S. 178 ....... 20, 21

United States v. Miller, 317 U.S. 369 ..................... 19

United States Light & Heat Corp. v. Niagara Falis G. &

ie es es Se I ot Sie a a o0u ds he 000 hoeeenwass 22

WwW

Wichita R.R. v. Pub.Util.Comm., 260 U.S. 48 .......... 23, 24, 25

Williams v. Mayor, 289 U.S. 36 ...............06. errr 7

Worcester v. Street Railway Co., 196 U.S. 539 ............ 7

Decisions of the Public Utilities Commission

of the State of California

Decision No. 50260, 53 Cal.P.U.C. 342 ................000- 5

Decision No. 55936, 56 Cal.P.U.C. 80 .................005- 3

Decision No. 56048, 56 Cal.P.U.C. 183 .................02- 16

Decision No. 56109, 56 Cal.P.U.C. 140 .................... 3

Decision No. 56652, 56 Cal.P.U.C. 277, 23 PUR 3d 209 ... .4,6,14

TaBLE or AvTHORITIES CrrED Vii

Constitutional Provisions,

Codes and Statutes Pages

California Constitution, Art. XII, secs. 22 and 23 ......... 25

California Public Utilities Code

EE he ee es ods wa wise Meemen 25

es Neg See eo cus eke eeul 19, 20, 22, 24

A re Latta beudee tet odode athe eadeaeekeue 19, 20, 22

I i a i usaekes cee eae ed 11

Te ee ae Eee Ege ea 1i

aly, 2 bee eed Nae bank be ead ewan eee ee 2

Supreme Court of the United States

OctoBER TERM, 1958

No. 656

ae 7

Tue City or Los ANGELEs, a municipal corpo-

ration, the Crry c. Lone Bracu, a municipal

corporation, RoceR ARNEBERGH and WALHFRED

J ACOBSON,

Appellants,

vs.

THe Pusuic Utiitres CoMMISSION OF THE ¢

Strate oF Cauirornis, and C. Lyn Fox, PETER

EK. MitcHetLt, MatrHew J. DooLey, THEODORE

H. Jenner and Everetr C. McKeace, as

members of and constituting the said Public

Utilities Commission,

Appellees.

4

On Appeal from the Supreme Court of the State of California.

MOTION TO DISMISS APPEAL.

The Pacific Telephone and Telegraph Company, Gen-

eral Telephone Company of California, California Water

& Telephone Company and Sunland-Tujunga Telephone

Company, appearing herein as appellees,’ move this Court

1These corporations are the real parties in interest against

which appellants’ attack upon the Public Utilities Commission of

California is directed. They were parties to the proceedings be-

Z

to dismiss for want of jurisdiction the appeal taken herein

to this Court by The City of Los Angeles, a municipal

corporation, the City of Long Beach, a municipal corpora-

tion, Roger Arnebergh and Walhfred Jacobson, appellants,

upon the following grounds:

1. The appellants have no standing to assert in this

Court the constitutional claims specified in the Jurisdic-

tional Statement.

2. The issue raised by appellants is moot.

3. The appeal does not present a substantial federal

question.

4, As to the individual appellants, the judgment of the

Supreme Court of California rests on an adequate non-

federal basis.

OPINIONS BELOW.

The judgment of the Supreme Court of California deny-

ing a writ of review (Appx. A)? was rendered without

fore the Publie Utilities Commission of California and participated

therein. The challenged order of the Commission directly affected

the rates to be charged by these four corporations. Under Cali-

fornia law they were entitled to appear and did appear in the

proceedings before the Supreme Court of California as respond-

ents (Public Utilities Code, sec. 1758, quoted in the Jurisdictional

Statement, Appendix G, p. 78). Having this status, they are

parties in interest here and have standing to move to dismiss the

appeal for want of jurisdiction. See Southern Pacific Co. v.

Public Utilities Commission of California (October Term, 1953,

No. 43) 346 U.S. 346.

2Reference herein to appendices are to those appended to the

Jurisdictional Statement. “Jur.St.” followed by a page number

refers to pages of the text of the Jurisdictional Statement. “Ans.

Pac.” followed by a page number refers to the Answer of The

Pacific Telephone and Telegraph Company, General Telephone

Company of California, California Water & Telephone Company,

and Sunland-Tujunga Telephone Company (Appearing as Re-

opinion. It is reported in 50 Advance California Reports,

No. 8, Minutes, page 2. The decision of the Public Utilities

Commission of California (Decision No. 55936, Appx. B,

p. 3) is reported in 56 Cal.P.U.C. 80.

THE QUESTIONS PRESENTED.

Appellants state that the question piesented is whether

the due process clause entitles public utility customers to

a hearing by a state public utility commission before the

latter may authorize increases in charges for a utility’s

services (Jur.St. 7). In other words, their claim is solely

one of procedural due process, based upon the charge that

they were not accorded notice or a fair hearing before the

Commission entered its interim order authorizing the in-

creased rates.

spondents under Publie Utilities Code Section 1758) to Petition

for Writ of Review, filed in ihe Supreme Court of California,

which is part of the record filed with the Clerk of this Court.

8Appellants attempt to lend color to their stated question by

adding purported characterizations of the background against

which they sav the question arises (Jur.St. 7). The purported

characterizativ. s do not reflect the actual situation. Contrary to

appellants’ assertion, the state law does provide “for conditional

increases pending a hearing before the Commission and for re-

funds of such increases according to a subsequent determination

upon such hearing” (Jur.St. 7). The very judgment below sus-

tained the Commission’s power to order interim relief. This was

an issue of state law before the California Supreme Court (see

Ans.Pac. 55-56) and was decided adversely to appellants’ conten-

tion (infra, pp. 12-13). Furthermore, before the interim rate

increases became effective, the Commission, Uy its Decision No.

56109, 56 Cal.P.U.C. 140, required the keeping of records so that

appropriate refunds might be made if Decision No. 55426 should

be annulled (Jur.St. 10 n.). Also, the challenged order of the

Commission (Decisic’ No. 55936, 56 Cal.P.U.C. 80) did not make

anything “due, owing and payable” (Jur.St. 7), but simply

authorized certain increased charges for future services.

4

Actually, the appeal presents the questions (1) whether

the appellants or any of them have standing to urge their

claim in this Court, (2) whether their claim has not be-

come moot through the final rate order of the Commission

(Decision No. 56652; 56 Cal.P.U.C. 277, 23 PUR 3d 209),

which, after 22 additional days of hearing, reaffirmed and

made permanent the interim rates, (3) whether in point

of fact appellants did not have full notice and hearing

before issuance of the interim order, and (4) whether

they or any of them have any constitutional right to notice

or hearing in advance of a state commission order per-

mitting interim rate increases.

STATEMENT OF THE CASE.

The Jurisdictional Statement does not accurately state

the case, either factually or legally.

The Pacific Telephone and Telegraph Company on Au-

gust 7, 1957, filed an application with the Public Utilities

Commission of California asking authorization to increase

certain intrastate telephone rates. Among the proposed

rate increases were changes in the charges for message

unit and multiple message unit service in the Los Angeles

Extended Area.t A formal notice was published in all

major Los Angeles newspapers and altogether in 31 sep-

4Message unit telephone service is a measured service wherein

time and distance factors make up the number of “units” to be

charged for a completed call. The changes proposed included both

an increase in the message unit rate itself, and a change in the >

distance factor or “mileage steps,” both effecting an increase in

charges (Appx. B, p. 6).

“The Los Angeles Extended Area is a large area embracing

numerous telephone “exchanges,” wherein interexchange telephone

service is furnished on a “local” rather than a “long distance”

4)

‘arate newspapers published in 27 separate cities in the

Los Angeles Extended Area (Ans.Pac. 11-12). Notice of

the filing of the application was given by letter to the

appropriate officers of the State of California and of the

counties and cities in which The Pacific Telephone and

Telegraph Company provides telephone service (Ans.Pac.

11).

Hearings on the application commenced September 25,

1957 (Appx. B, p. 5). The Cities of Los Angeles and Long

Beach appeared (Appx. B, pp. 19-20). The four telephone

companies joining in this motion were parties to other

proceedings which also involved the multiple message unit

service in the Los Angeles Extended Area. These proceed-

ings were consolidated with the rate application on Sep-

tember 27, 1957 (Appx. B, pp. 4-6). At the hearing on that

day the four companies joined in a motion for an interim

rate increase affecting the multiple message unit rate

(Appx. B, p. 6; Appx. E, p. 62). Hearings continued on

September 27, and October 3, 4 and 10, 1957 (Appx. B,

p. 6; Appx. E, p. 62). On December 10, 1957, the Commis-

sion issued the order challenged here, authorizing in part

the proposed interim rate increases (Appx. B, pp. 3-23).

Attendance and participation of the Cities of Los Angeles

and Long Beach at these hearings are undisputed (Appx.

KE, p. 62; Ans.Pac. 39-48).

basis by means of a multiple message unit rate structure. The

four telephone companies which join in this motion each furnish

telephone service in a part of the Los Angeles Extended Area

(Appx. B, p. 6). Telephone service is unrestrictedly interchanged

between the customers and territories of the respective companies

through physical interconnections of their lines.

A uniform message unit rate for service furnished by the four

companies in the Los Angeles Extended Area prevails under

order of the Commission (Decision No. 50260 (1954) 53 Cai.

P.U.C. 342).

6

Petitions for rehearing, filed by the appellants here,

were denied on January 7, 1958 (Appxs. E and F, pp.

07-66).

The Supreme Court of California denied review on May

21, 1958 (Appx. A).

Previously, on May 6, 1958, the Commission issued its

final order in the consolidated proceeding (Decision No.

56652; 56 Cal.P.U.0. 277, 23 PUR 3d 209) which reaffirmed

and made permanent the interim rates.

ARGUMENT.

I.

APPELLANTS HAVE NO STANDING TO URGE

THEIR CLAIMS IN THIS COURT.

Appellants are (a) two California cities, claiming to act

for themselves and ‘‘in effect in behalf of all of the sub-

seribers within the Los Angeles area who would otherwise

have been without representation’’ and (b) their city at-

torneys ‘‘as individual subscribers.’’ The appellants as a

group claim to appeal ‘‘in behalf of all telephone sub-

scribers within the Los Angeles area.’

A. The cities.

1. The cities have nc right which they may invoke under the Federal

Constitution against the legislative action of their parent state, or

its duly constituted agent, the Public Utilities Commission.

As to any purported violation of their constitutional

rights, Los Angeles and Long Beach as municipal corpo-

rations have no privileges or immunities under the Fed-

5Al] these quotations appear in the Jurisdictional Statement,

p. 12.

(

eral Constitution which they may invoke in opposition to

the will of their creator, the state.

Wiliams v. Mayor (1933) 289 U.S. 36, 40;

R.R.Comm’n v. Los Angeles R.Co. (1929) 280 U.S.

145, 156;

Risty v. Chicago, Rl. & Pac.Ry.Co. (1926) 270 U.S.

378, 390;

Trenton v. New Jersey (1923) 262 U.S. 182, 192;

Newark v. New Jersey (1923) 262 U.S. 192, 196;

Pawhuska v. Pawhuska Ou Co. (1919) 250 U.S. 394,

399 ;

Worcester v. Street Railway Co. (1905) 196 U.S.

539, 548-549.

This principle applies to legislative determinations of

the state’s duly constituted agent, the public utilities com-

mission.

R.R.Comm’n v. Los Angeles R.Co., supra, 280 U.S.

145, 156;

Pawhuska v. Pawhuska Ou Co., supra, 250 U.S. 394,

399.

This court has repeatedly cited the Pawhuska and other

cases referred to above in per curiam decisions as com-

pelling the dismissal of appeals sought to be taken by

municipal corporations to invalidate rate orders of state

commissions. For example:

City of Winfield v. Court of Industrial Relations

(1923) 263 U.S. 680; |

Borough of Edgewood v. Wilkinsburg & East Pitis-

burgh Street Railway Company and Borough of

Edgewood v. Public Sergice Commission of the

Commonwealth of Pennsylvania (1922) 258 U.S.

604 ;

8

City of Sapulpa v. Oklahoma Natural Gas Com-

pany (1922) 258 U.S. 608;

People of the State of Michigan ex rel. Alez. J.

Groesbeck, Attorney General v. Detroit United

Railway (1921) 257 U.S. 609;

City of Chtwago v. Chicago Railways Company

(1921) 257 U.S. 617;

City of Hillsboro, Oregon v. Public Service Com-

mission of Oregon (1921) 255 U.S. 562;

State of Missouri at the Relation of City of Sedalia

v. Public Service Commission of Missouri (1920)

251 U.S. 547;

Kansas City v. Public Service Commission of Mis-

sourt (1919) 250 U.S. 652.

2. The cities have no standing to assert the constitutional claims of

others.

As to any purported violation of constitutional rights

of subscribers within cities, or elsewhere within the ‘‘Los

Angeles area,’’ municipal corporations, just as any other

litigant, have no standing to champion the constitutional

rights of others.

Lampasas v. Bell (1901) 180 U.S. 276, 283-284;

Tileston v. Ullman (1943) 318 U.S. 44, 46;

Premier-Pabst Co. v. Grosscup (1936) 298 U.S. 226,

22% $

Cronin v. Adams (1904) 192 U.S. 108, 114.

The cities’ suggestion that the subscribers within the Los

Angeles area would have been without representation un-

less the cities appeared in their behalf (Jur.St. 12) is

unsound. Aside from the widespread notice of rate in-

crease applications and the liberal practice of the Com-

9

mission in allowing interested parties to appear,® under

California law the Commission itself represents the public

interest in the field of public utility regulation and is

charged with the protection of that interest.’

Sale v. Railroad Commission (1940) 15 Cal.2d 612,

617-618, 104 P.2d 38, 41-42;

Hanlon v. Eshleman (1915) 169 Cal. 200, 202, 146

Pac. 656, 657; *

Pacific Telephone Etc. Co. v. Eshleman (1913) 166

Cal. 640, 187 Pac. 1119.

This Court has recognized that state regulatory au-

thority is responsible for safeguarding the public interest.

Smith v. Ill. Bell Tel. Co. (1926) 270 U.S. 587, 592;

New York City v. N.Y. Tel. Co. (1923) 261 U.S. 312,

316,

and, on the authority of the Pawhuska case, it has with-

out any differentiation dismissed appeals by municipal

corporations seeking to invalidate rate orders where rep-

resentation of resident subscribers was asserted.

City of Winfield v. Court of Industrial Relations,

supra, 263 U.S. 680;

City of Sapulpa v. Oklahoma Natural Gas Com-

pany, supra, 257 U.S. 617;

City of Chicago v. Chicago Railways Company,

supra, 257 U.S. 617.

Appellants refer to a number of cases as illustrative

of instances where municipalities have appeared as rep-

6For newspaper publicity, see Ans.Pac. 11-12.

For appearances of interested parties in the proceeding below,

see Appx. B, pp. 19-20.

7The Commission so determined in the present proceeding

(Appx. E, p. 61).

10

resentatives of ‘‘customer interests’’ (Jur.St. 24, n. 19).

But the fact of such appearances before federal and state

regulatory bodies, or in proceedings to review their ac-

tions, does not, of course, negate the Pawhuska rule and

confer standing in this Court to argue constitutional claims

on behalf of others.

B. The city attorneys as individuals.

In an admitted effort to circumvent the decisions of

this Court cited above (Jur.St. 12, n. 7) the two city

attorneys added their names ‘‘as individual subscribers’’

to the petitions for rehearing which they filed in the Com-

mission on behalf of their principals. This was their first

appearance other than in their official capacity.

1. Not having established in the record any interest in their individual

capacities as to which they now claim their constitutional rights

have been infringed, the city attorneys have no standing to make

such claim in this Court.

The city attorneys made no showing either by testi-

mony, documentary evidence pr affidavit that in their

individual capacities they were in fact subscribers for

telephone service from any of the four telephone com-

panies which join in this motion; or, if they were such

subscribers, what class, type or grade of service they

used; or how their service was affected by the Commis-

sion order in question.

In the absence of a showing in the record of a consti-

tutionally protected interest, the city attorneys have no

standing to challenge in this Court the order of the Com-

mission on the ground that it infringed an unproved

interest.

11

‘It is the settled law of this court that one who

would strike down a state statute as violative of the

Federal Constitution must bring himself by proper

averments and showing within the class as to whom

the act just attacked is unconstitutional. He must

show that the alleged unconstitutional feature of the

law injures him, and so operates as to deprive him

of rights protected by the Federal Constitution’’

(emphasis added) (Southern Railway Co. v. Kumg

(1910) 217 U.S. 524, 534).

To the same effect is:

Standard Stock Food Co. v. Wright (1912) 225

U.S. 540, 550.

2. Under California law, the city attorneys as individuals had no

standing to seek a writ of review, the denial of which is the subject

of their present appeal. As to them, therefore, the judgment reste

on an adequate nonfederal ground.

Under California law only a party who has duly ap-

plied to the Commission for a rehearing is given the right

to seek a judicial review of the Commission’s order by

means of a petition for that purpose.* Under the same law

the right tc apply for a rehearing in the Commission is

given only to (a) ‘‘any party to the action or proceeding’’

or (b) ‘‘any stockholder or bondliolder or other party

pecuuiarily interested in the public utility affected.’” The

city attorneys in their individual capacities were not

parties to the proceeding; admittedly (Jur.St. 12) they

had entered no appearance in their individual capacities

8Public Utilities Code, sees. 1731 and 1756; Appx. G, pp. 76-77.

®Public Utilities Code, sec. 1731; Appx. G, p. 76.

12

unti! all the proceedings with respect to the interim rate

increase order were completed and the order had been

issued. They then added their names to the cities’ peti-

tions for rehearing, without any proof in the record of

their interest in the matter.

Under the California statute noted above, one not pre-

viously a party tu the proceeding in the Commission, and

therefore not within the class authorized to apply for a

rehearing, does not acquire the status of a party simply

by filing an application for a rehearing. Nor did the city

attorneys show, or make any effort to show, any stock-

holding, bondholding, or any other pecuniary interest in

any of the four public utilities affected. Not having been

in a position under California law to apply to the Com-

mission for a rehearing, they had no standing to petition

the Supreme Court of California for a writ of review.

Their standing before the Supreme Court of California

was duly questioned before that court (Ans.Pac. 30-31,

n. 9). Since that court’s denial of a writ of review, with-

ont opinion, under California law is a determination on

the merits of the legal and factual issues raised in the

review proceedings,

Napa Valley Co. v. R. R. Comm. (1920) 251 U.S.

366, 372-373;

People v. Western Air Lines, Inc. (1954) 42 Cal.2d

621, 630-631, 268 P.2d 723, 728, appeal dismissed

(1954) 348 U.S. 859;

Funeral Dir. Assn. v. Bd. of Fumeral Dirs. (1943)

22 Cal.2d 104, 107-108, 136 P.2d 785, 787;

People v. Hadley (1924) 66 Cal.App. 370, 375, 226

Pac. 836, 839, .

13

that point is res judicata against appellants, and the deci-

sion below in this particular rests upon an adequate non-

federal ground.

Rogers v. Jones (1909) 214 U.S. 196, 204;

De Saussure v. Gaillard (1888) 127 U.S. 216, 232-

234.

It is the rule of this Court that one not a party to pro-

ceedings below has no standing to appeal or petition for

a writ of certiorari from the judgment therein:

Bayard v. Lombard, et al. (1850) 9 How. (50 U.S.)

530, 551;

Louisiana v. Jack (1917) 244 U.S. 397, 402;

Ex parte Leaf Tobacco Board of Trade (1911) 222

U.S. 578, 581;

Posner v. Anderson (1934) 293 U.S. 531.

$3. The two city attorneys have no standing to urge the constitutional

claims of other individuals.

Despite their unsupported assertions that they appeal

‘‘in behalf of all of the telephone subscribers within the

Los Angeles area’’ (Jur.St. 12), the two city attorneys as

individuals are not the champions of anyone’s constitu-

tional rights except their own (supra, p. 8).

II.

THE FINAL ORDER OF THE COMMISSION, DETERMINING THAT

THE INTERYM RATE RELIEF WAS JUSTIFIED AND AFFIRM-

ING AND MAKING PERMANENT THE RATE INCREASES

FIXED THEREIN, RENDERS THE APPEAL MOOT.

The gist of appellants’ claim is that lack of sufficient

notice and full hearing before the interim rate increases

14

were ordered denied them adequate opportunity to con-

test the proposed rate increases. Inherent in their ciaim

is the assumption that if they had had such opportunity,

they could have succeeded in establishing to the Commis-

sion’s satisfaction that the rates which the Commission

subsequently ordefed were unjust or unreasonable. How-

ever, after the hearings preceding the interim rate order,

hearings in the matter continued for several months until

u total of 32 days of public hearings had been held.’

Here was ample opportunity for appellants to make fur-

ther inquiry and offer any showing with respect to the

rates in question, had they seen fit to do so.

Ultimately,.on_ May 6, 1958, the Commission issued its

finai order (Pac. Tel. & Tel. Co., Decision No. 56652

(1958) 56 Cal. P.U.C. 277; 23 PUR 3d 209). In this final

decision, the Commission summarized the additional evi-

dence upon the-subject of the message unit rates which

had been adduced during the days of hearing subsequent

to the issuance of the interim order, and went on to state:

(56 Cal. P.U.C. 292; 23 PUR 3d 225):

‘‘The additional evidence leads the Commission to

-the further conclusion that Decision No. 55936, which

authorized rate changes on an interim basis, should

now be made permanent. The Commission finds, there-

fore, that the rate relief granted under Decision No.

55936 was justified and said decision as amended by

Decision No. 56048 with respect to its effective date

is hereby affirmed and made permanent.”’

The result is that upon completion of all hearings, in-

cluding all showings that were offered and received and

Pac, Tel. & Tel. Co., Decision No. 56652 (1958) 56 Cal.P.U.C.

277, 279; 23 PUR 3d 209, 213 (the final decision).

‘15

all cross-examination, the Commission ended with the de-

termination that the rates in question were (and had been

from the time fixed in the interim order) just and reason-

able. This disposes of any intimation by appellants that

they suffered any injury as a result of the interim rate

order.

In short, even if both the judgment appealed from and

the Commission’s interim rate order were set aside, the

final order of the Commission reaffirming the rate in-

creases embodied in the interim order still confronts the

appellants. The final order renders moot the present chal-

lenge of the interim order. The case is like those in which

an order denying a preliminary injunction has become

merged in a final judgment denying injunction; in such

cases this Court has dismissed appeals from the orders

denying the temporary injunctions.

Champlin Rfg. Co. v. Commission (1932) 286 U.S.

210, 212, 224;

Pacific Tel. Co. v. Kuykendall (1924) 265 U.S. 196,

205-206 ;

Shaffer v. Carter (1920) 252 U.S. 37, 44.

16

III.

THE APPELLANT CITIES ACTUALLY APPEARED IN THI: PRO-

OCEEDINGS BEFORE THE COMMISSION WHICH CULMINATED

IN THE CHALLENGED ORDER, AND WERE GIVEN FULL

OPPORTUNITY TO AND DID PARTICIPATE IN THE VARIOUS

PHASES OF THESE PROCEEDINGS, INCLUDING OROSS-

EXAMINATION AND ARGUMENT. THERE IS NO FACTUAL

BASIS FOR THEIR OLAIM THAT THEY WERE DENIED ADF.-

QUATE NOTICE AND HEARING.

In point of fact, appellants’ claims that the Commission

denied them adequate notice and hearing are specious. As

indicated above, the two city attorneys did not see fit to

appear in their individual capacities until after the interim

order had issued (and then nominally joined in petitions

for rehearing for the avowed purpose of circumventing

the ‘‘Pawhuska rule,’’ supra), although they had pre-

viously appeared on behalf of their municipal principals

and obviously knew all about the hearings. The two cities

were represented throughout the proceedings (Appx. B,

pp. 19-20, Appx. E, p. 62).

A. Appellants have produced no record to contradict the Com-

mission’s determination that due notice and hearing were

accorded.

The Commission determined that appropriate notice and

a full hearing had been accorded, in its Decision No. 56048

denying the petition of the City of Los Angeles and Roger

Arnebergh for a rehearing (Appx. E). The Commission

said (Appx. E, pp. 60-62) :

‘*# * © the burden of the petition is that due process

of law was denied petitioners, lawful notice of the

proposed interim increase of rates was not given °* * *.

The record in these proceedings and the law con-

stitute a complete refutation of petitioners’ unsup-

ported allegations.

17

The repeated assertion by petitioners in their peti-

tion for rehearing that a full hearing was not ac-

corded the parties on the motion by the telephone

companies for interim relief is incorrect and the

record irrefutably so shows. Hearings on the two

complaints were held on September 19, 20, and 26,

1957. * * * On the third dav of hearing in the appli-

cation proceeding (September 27, 1957) * * * the

four telephone utilities made a motion (or interim

relief, and hearings thereon were held on September

27, October 3, 4 and 10, 1957. Petitioner City of Los

Angeles appeared at all of the above hearings.

After the telephone companies had presented their

evidence in support of such motion and the protesting

and interested parties including the City of Los An-

geles,"!1] had cross-examined the witnesses for the tele-

phone companies, the presiding officer inquired of

these parties if they had any evidence to offer in

connection with the motion for interim relief and they

answered in the negative. No suggestion or request

was made by ary of these parties for a continuance

to enable said parties to present evidence. Also, the

motion for interim rate relief was argued by the par-

ties, including the City of Los Angeles and other pro-

testing and interested parties. In these circumstances,

the repeated insinuation of petitioners that the inter-

ested parties were denied an opportunity to be heard

and that a full hearing was not had on the motion for

interim relief is disingenuous, to say the very least.’’

Appellants’ conduct parallels the situation in Market

Street R. Co. v. Comm’n (1945) 324 U.S. 548, where this

Court said (p. 559):

‘‘But even if a more convincing showing were made

that the Company had relevant evidence to be heard,

11These interested parties also included the City of Long Beach,

appearing by Walhfred Jacobson (Appx. B, p. 20).

we find no adequate excuse for the failure to offer it

in the proceeding. No offer was rejected, no request

for time to obtain such evidence was denied. A mis-

apprehension by a litigant of the steps which its best

interests require during a trial may be appealing

grounds for a plea to the discretion of the hearing

tribunal for another chance, but it is not grounds for

our interference as a denial of constitutional rights.’’

In the record on this appeal, the above determination

by the Commission is not contradicted by any showing to

the contrary. Appellants have not supported their naked

assertions as to lack of due notice and hearing by bring-

ing up the record before the Commission to show, if they

could, that the Commission’s determination was erro-

neous. In such a situation this Court will accept the find-

ings of the Commission as correct.’?

Miss. Valley Barge Co. v. U.S. (1934) 292 U.S. 282,

286;

Edward Hines Trustees v. U.S. (1923) 263 U.S. 143,

148;

Nashville Ry. v. Tennessee (1923) 262 U.S. 318,

324.

12There arc in the record before this Court several statements

paraphrasing the record before the Commission and-also verbatim

excerpts from that record, which show beyond question that the

cities were given every opportunity to cross-examine witnesses

and make any affirmative showing that they saw fit. These state-

ments and excerpts appear in the answer of The Pacific Telephone

and Telegraph Company, et al., to petition for writ of review

(sipra, p. 2, n 2) pp. 39-48.

While the appellants say that the “factual assertions in denial

or avoidance” in the answers to the appellants’ petition for writ

of review were “traversed by the appellants’ reply” (Jur.St. 8),

their rep'y failed either to challenge the accuracy of any of the

excerpts from the record or to produce any contradictory evi-

dence or record references whatever.

B. The appearances of appellant cities by the appellant city at-

torneys in the Commission proceedings waived any objection

to the adequacy of notice.

The participation of the appellant cities by their city

attorneys in the Commission proceedings has already

been noted. It is fundamental that the actual appearance

of a party at a proceeding waives any objection to the

adequacy of notice of such proceeding.

United States v. Miller (1948) 317 U.S. 369, 382;

Doty v. Love (1935) 295 U.S. 64, 74;

Detroit &c. Ry. v. Osborn (1903) 189 U.S. 383, 391.

IV.

IN ANY EVENT TEE APPELLANTS HAVE NO CONSTITUTIONAL

RIGHT TO NOTICE AND HEARING, BEFORE THL COMMIS-

SION WAS ENTITLED TO MAKE ITS ORDER INCREASING

TELEPHONE RATES ON AN INTERIM BASIS.

Even if the appellants were right in their contentiors

+-at they were denied adequate notice and hearing before

the Commission’s interim rate order issued, that fact

would not avail them a remedy here. They have no con-

stitutionally protected right to prior notice and hearing

because (a) the Commission itself represents the public

interest in rate-making proceedings, (b) the state law

affords utility customers adequate protection against arbi-

trary rate-fixing action by giving them a right, under

section 1702 and section 1704 of the California Public

Utilities Code,!* to challenge before the Commission any

131702, Complaint may be made by the commission of its

own motion or by wny corporation or person, chamber of com-

merece, board of trade, labor organization, or any civic, commercial,

mercantile, traffic, agricultural, or manufacturing association or

al

‘‘charge heretofore established or fixed by or for any

public utility, in violation or claimed to be in violation,

of any provision of law * * *’’ (Cal.Pub.U.Code, sec.

1702), and (c) as subscribers, appeilants have no such

property interest in the rates fixed for public service cor-

porations as to entitle them or each customer or potential

customer to notice and hearing before the Commission

can increase a particular rate.

This Court recognized all three of these grounds in

United States v. Merchants €c. Ass’n. (1916) 242 US.

178, a case arising under the Interstate Commerce Act.

In disposing of the contention of certain shippers that

they had been denied their right to a hearing in the

rate-making procecding, this Court declared (p. 188):

organization, or any body politic or municipal corporation, by

written petition or complaint, setting forth any act or thing done

or omitted to be doue by any public utility, including any rule

or charge heretofore established or fixed by or for any public

utility, in violation or claimed to be in violation, of any provision

of law or of any order or rule of the commission. No complaint

shali be entertained by the commission, except upon its own

motion, as to the reasonableness of any rates or charges of any

gas, electrical, water, or telephone corporation, unless it is signed

by the mayor or the president or chairman of the board of trus-

tees or a majority of the council, commission, or other legislative

body of the city or city and county within which the alleged

violation occurred, or by not less than 25 actual or prospective

consumers or purchasers of such gas, electricity, water, or tele-

phone service” (Appx. G, p. 74).

“1704. Upon the filing of a complaint, the commission shall

cause a copy thereof to be served upon the corporaticn or person

complained of. Service in all hearings, investigations, and pro-

ceedings pending before the commission may be made upon any

person upon whom a summons may be served in accordance with

the provisions of the Code of Civil Procedure and may be meade

personally or by mailing in a sealed envelope, registered, with

postage prepaid. The commission shall fix the time when and

place where a hearing will be had upon the complaint and shall

serve notice thereof, not less than 10 days before the time set for

such hearing, unless the commission finds that public necessity

requires that such hearing be held at an earlier date.”

aL

‘“‘The carrier is the only necessary party to the

proceeding under §4. The Commission represents

the public. While it is proper and customary for

cormarunities or shippers interested to participate in

‘earings held, there is no provision for notice to

incom. They are not bound by the order entered; at

least in the absence of such participation. And if the

rates made by tariffs filed under the authority granted

seem to them unreasonable or unjustly discrimina-

tory, §§ 13 and 15 afford ample remedy. Respond-

ents contend that, after the amended order was

entered and the tariffs filed, they did apply to the

Commission for relief ‘but were denied the right of

a hearing’ and that ‘their protest and demand were

ignored and denied.’ What they did was to petition

for a ‘rehearing’ in the proceedings under the Fourth

Section, to which they now say they were not parties,

instead of applying for redress under $13, as they

had a legal right to do. They mistook their remedy.

To permit communities or shippers to seek redress for

such grievances in the courts would invade and often

nullify the administrative authority vested in the

Commission; and, as this case illustrates, the at-

tempt of the court to remove some alleged unjust dis-

crimination might result in creating infinitely more.

The decree of the District Court canceis the amended

order and the tariff only so far as it concerns the

four complaining cities and thereby discriminates

perhaps most unjustly in their favor as against the

other 181 interior cities.’’*

14In accord with United States v. Merchants &c. Ass’n., state

court cases hold that notice to and a hearing for consumers are

uot vonstitutional prerequisites to the issuance of rate orders.

See:

Staie v. Rawlings (1951) 229 Ind. 552, 99 N.E.2d 597, 602;

Gateway City Transfer Co. v. Public Service Commission

(1944) 245 Wis. 304, 14 N.W.2d 6, 7-8;

The same situation _prevails in California. It has al-

ready been pointed ott that (1) the California Public

Utilities Commission is expressly charged with the repre-

sentation of the public interest (supra, p. 9) and (2)

utility customers have adequate right to challenge any

rate and have a hearing thereon, afer the rate has been

fixed, under sections 1702 and 1794 of the California Pub-

lic Utilities Code (supra, p. 19).

Moreover, it is settled that the subscribers’ right to

service exists only because of statute and is not such a

property right as may form the basis of a claim of con-

fiscation. A leading case is the decision of the United

States Circuit Court of Appeals for the Second Circuit:

United States Light & Heat Corp. v. Niagara Falls

G. d E. L. Co. (2 Cir. 1931) 47 F.2d 567, 570,

certiorari denied (1931) 283 U.S. 864.

In accord are numerous state court cases.'5

Lenthan v. Tri-State Telephone & Telegraph Co. (1940)

208 Minn. 172, 293 N.W. 601, 605, certiorari denied

- (1940) 311 U.S. 711;

Consumers’ Gas Co. v. Corporation Commission (1923) 95

Okl. 57, 219 Pac. 126, 129;

City of Bartlesville v. Corporation Commission (1921) 82

Okl. 160, 199 Pac. 396, 398;

City of Atlanta v. Georgia Ry. & Power Co. (1919) 149

Ga. 411, 100 S.E. 442, 444-445;

Union Dry Goods Co. v. Georgia Public Service Corp.

(1916) 145 Ga. 658, 89 S.E. 779, affirmed (1919) 248

U.S. 372.

15City of Birmingham v. Southern Bell Tel. & Tel. Co. (1937)

234 Ala. 526, 176 So. 301, 306-307;

City of New Haven v. New Haven Water Co. (1946) 132

Conn. 496, 45 Atl.2d 831, 838-839;

State v. Mountain States Tel. & Tel. Co. (1950) 54 N.M.

315, 224 P.2d 155, 161-166;

ao

Prior notice and hearing to all utility customers before

a public utilities commission could raise a rate, even on

an interim basis, would be intolerable from the practical

standpoint. If the Commission were required to give no-

tices and hold hearings before it could increase any of

the thousands of separate utility rates on file in Cali-

fornia, upon pain of having the amended rates set aside

as unconstitutional, the legislative function of rate mak-

ing would be clogged to the point of paralysis.

Neither of the decisions of this Court with which ap-

pellants say the judgment conflicts—Hollis v. Kutz (1921)

255 U.S. 452; Wichita R. R. v. Pub. Util. Comm. (1922)

260 U.S. 48 (Jur.St. 2, 19, 25-26)—furnishes any support

for their contention. In the Hollis case the Court inter-

preted a federal statute as permitting gas consumers to

challenge a rate order of the Publie Utilities Commission

of the District of Columbia in an equity suit without hav-

ing appeared in the commission hearing or having asked

the commission to review its decision; and further held

that ‘‘the plaintiffs have no right to require equality [of

rates] with the Government and they have no other

ground upon which to found their supposed right’’ (255

U.S. 455). Nothing in the decision suggests that the

Boston Real Estate Bd. v. Department of Public Util. (1956)

334 Mass. 477, 136 N.E.2d 243, 251-252;

State v. Municipal Corporations of Scotland Neck (1955)

243 N.C. 193, 90 S.£.2d 519, 528;

Ten Ten Lincoln Place v. Consolidated Edison Co. (1947)

190 Mise. 174, 73 N.Y.S.2d 2, 5-6, affirmed (1948) 273

App.Div. 903, 77 N.Y.S.2d 168, leave to appeal denied

(1948) 298 N.Y. 937, 80 N.E.2d 547;

Childs v. Brooklyn Edison Co. of N.Y. (Supreme Ct., Kings

Co. Pt. I, 1951) 105 N.Y.S.2d 503. 508-509 ;

McCormick v. Westchester Lighting Co. (1931) 141 Mise.

261, 252 N.Y.S. 454, 458.

~

consumers had a right, protected by the Federal Constitu-

tion, to a hearing before the commission prior to an order

allowing increased rates. :

The Wichita decision struck down an order of the

Kansas Pubiic Utilities Commission increasing utility

rates fixed by private contract prior to the commission’s

inception, on the ground of a Kansas statutery require-

ment that an express finding of unreasonableness by the

commission was indispensable and had not been made

(260 U.S. 59). This determination obviated any decision

upon the plaintiff’s claim that the commission order

violated its constitutional rights." The other holding in

the case, that the plaintiff was entitled, in its action to

test its claim that the order of the commission had in-

fringed its constitutional rights, to an opportunity to

maintain by evidence and argument before the district

court the issue as to due process of law and equal protec-

tion of the law (260 U.S. 55), has no relation to the issue

here. Under California law, opportunity te maintain such

an issue by evidence and argument is afforded by Public

Uiilities Code section 1702, supra.'’

1€Any suggestion that even a consumer with a contract is con-

stitutionally entitled to notice and hearing before the Commission,

on the propriety of rates to be fixed under a regulatory statute,

is answered by this Ceourt’s decision in Midland Co. v. K. C.

Power Co. (1937) 300 U.S. 109, 114. As this Court said in United

Gas Co. v. Mobile Gas Corp. (1956) 350 U.S. 332, 345-346:

“In Midland * * ® the Court held only that a statute inter-

preted by the state court as authorizing unilateral contract

changes by a public utility was not unconstitutional. On the

other hand, in Wichita this Court internreted a Kansas stat-

ute, not yet fully construed by the state court, as not giving

such a power to a public utility * * *.”

17In a footnote (Jur.St. 19) appellants refer to Panama Re-

fining Co. v. Ryan (1935) 293 U.S. 388 and Maaler v. Eby

Appellants cite a number of cases as conflicting ‘‘in

principle’’ with the judgment below (Jur.St. 26). With

two exceptions’® these cases simply restate the established

doctrine that the property of a public service corporation,

dedicated to public uxe, is protected from confiscation by

the requirements of due process.

—

ae...

~~

(1924) 264 U.S. 32 as citing the Wichita case. They have no

relevance here. Their holdings that a federal agency must make

findings in support of its orders were based on the constitutional

framework of the federal government in order to prevent an

unconstitutional delegation of congressional legislative power to

administrative agencies. The case here involves the framework of

state government, with no similar inhibition (Cal. Const., Art.

XII, sees. 22 and 23). The fact that the California legislature, by

statute, has imposed a requirement of Commission findings in

certain instances (e.g., Publie Utilities Code section 454; Appx.

G, p. 70) does not make the requirement a constitutional one.

187m re Oliver (1948) 333 U.S. 257 is not even in the utility

field. It involved the requirements of procedural due process

where a suspected criminal was imprisoned without a hearing.

The case has no bearing here.

Hollis v. Kutz (1921) 225 U.S. 452 is discussed supra, p. 23.

CONCLUSION.

For the foregoing reasons, we respectfully submit that

the appeal should be dismissed.

Dated, San Francisco, California,

February 17, 1959.

Respectfully submitted,

Artuur T. GEorGE,

Francis N. MaRSHALL,

Attorneys for The Pacific Telephone and

Telegraph Company, Appellee.

JoHN Rosert JONEs,

Attorney for General Telephone Com-

pany of California, Appellee.

Auvyin H. PEvavin,

Attorney for California Water & Tele-

phone Company, Appellee.

Wakren A. PALMER,

Attorney for Sunland-Tujunga Telephone

Company, Appellee.