University of Southern California Dissertations and Theses

A comparative study of the administrative procedure of the Public Utilities Commission of the state of California

(USC Thesis Other)

A comparative study of the administrative procedure of the Public Utilities Commission of the state of California

PDF

Download a page range

Download transcript

Copy asset link

Request this asset

Transcript (if available)

Content A COMPARATIVE STUDY OF THE ADMINISTRATIVE PROCEDURE
QF THE PUBLIC UTILITIES COMMISSION OF
THE STATE OF CALIFORNIA
A T h esis
P re s e n te d to
The F a c u lty o f th e G raduate School
The U n iv e r s ity o f S outhern C a lif o r n ia
In P a r t i a l F u lf illm e n t
o f th e R equirem ents f o r th e Degree
M aster o f A rts i n Economics
W
James H arlan Boren
June 1950
UMI Number: EP44697
All rights reserved
INFORMATION TO ALL USERS
The quality of this reproduction is dependent upon the quality of the copy submitted.
In the unlikely event that the author did not send a complete manuscript
and there are missing pages, these will be noted. Also, if material had to be removed,
a note will indicate the deletion.
Dissertation Publishing
UMI EP44697
Published by ProQuest LLC (2014). Copyright in the Dissertation held by the Author.
Microform Edition © ProQuest LLC.
All rights reserved. This work is protected against
unauthorized copying under Title 17, United States Code
ProQuest LLC.
789 East Eisenhower Parkway
P.O. Box 1346
Ann Arbor, Ml 48106- 1346
Ec *s~o ZJ
This thesis, written by
JAMES„MRMN..BOREN.......................
under the guidance of hX.s.— Faculty Committee,
and approved by all its members, has been
presented to and accepted by the Council on
Graduate Study and Research in partial fulfill
ment of the requirements for the degree of
................. M ASTER OF ARTS..............................
............................
Dean
________
Faculty Committee
TABLE OF CONTENTS
CHAPTER PAGE
I . THE PROBLEM A M D DEFINITIONS OF TERMS USED . . 1
The problem ....................... 1
S tate m e n t o f th e problem . ..................... . 1
Im portance o f th e s t u d y ............................. 2
D e f in itio n s o f terras u s e d ..................................... 5
O rg a n iz a tio n o f th e rem ainder o f th e t h e s i s ^
M ajor so u rces o f d a ta ........................ . 3-®
IT . . OFFICIAL ACTION BY THE COMMISSION.............. 13
1 ^
I n s t i g a t i o n o f o f f i c i a l a c tio n ........................
1 _ 8
Types and forms o f co m p lain ts . . ...................
21
A p p lic a tio n s ...............................................
O R
I I I . ESTABLISHMENT OF JURISDICTION . . . . . . . .
29
P u b lic u t i l i t y s t a t u s ................................................
31
C o n c lu siv e n ess o f j u r i s d i c t i o n a l f in d in g s .
31
Summary and c o n c lu s io n ...............................................
IV. REQUIREMENT OF NOTICE AND HEARING........................... 34
C a p a c itie s se rv e d by com m issions........................ 35
Summary and c o n c lu sio n . ........................ 42
V. SCOPE OF THE HEARING............................................... 44
Amendment o f p le a d in g s ..................................... 45
Amendment o f p le a d in g s i n C a lif o r n ia . . 46
Amendment o f p le a d in g s i n New York. . . . 47
i v
CHAPTER
Amendment o f p le a d in g s i n W isconsin . . . 48
Amendment o f p le a d in g s b e fo re th e F .P .C . 49
Summary and c o n c l u s i o n .......................................... 52
VI. PREHEARING CONFERENCES ................................................. ,55
C o n trib u tio n s o f th e c o n fe re n c e s . . .. . . 56
P ro ced u re o f th e F e d e ra l Power Commission . 57
Summary and c o n c l u s i o n s ............................ 59
V II. THE HEARING..............................................................................
C o n s o lid a tio n o f p ro c e e d in g s .................................
O ral te stim o n y and c ro s s -e x a m in a tio n . . . .
O ral argum ent . . . . . . . . . . . . . . . 69
C o o p e ra tiv e p rocedure o f th e F .P .C . . . . . 70
Summary and c o n c l u s i o n s ........................................... 77
V I I I . RULES OF EVIDENCE................................................................ 80
F l e x i b i l i t y o f commission p ro ced u re . . . . 81
A dm ittance o f h e a rsa y as evidence . .. . . 8 3
In fo rm alism n o t a cause o f i n v a l i d a t i o n . . 8 7
J u d i c i a l n o t i c e ..................................... S £ L
Summary and c o n c l u s i o n s ........................................... 93
IX. ENFORCEMENT OF COMMISSION DECISIONS . . . . . 95
G eneral p ro c e d u re . . . . . . . . . . . . . 95
New York p ro c e d u re .......................................................... 96
W isconsin p ro ced u re .................................. . . . . 97
V
CHAPTER
F e d e r a l Power Commission p ro ced u re . . . . 98
C a lif o r n i a p ro ced u re and contem pt power. . 99
Summary and c o n c l u s i o n s ............................ 192
X. FINALITY OF COMMISSION DECISIONS............... 104
R e h ea rin g s . . . . . . . . . . . . . . . . 104
P e t i t i o n f o r re h e a rin g ............................ . 105
P ro c ed u re i n re h e a rin g ...................................... 106
C a lif o r n ia p ro c e d u re . . ............................. 108
New York p ro c e d u re ..................................... 108
W isconsin p ro c e d u re . . . . . . . . . . 109
F e d e ra l Power Commission p ro c e d u re . . 110
Reasons f o r re h e a rin g ........................ I l l
A ppeal and review ............................. 113
I s s u e o f j u r i s d i c t i o n . .................................. 114
Review upon commission r e c o r d .............. 115
P reced en ce o f p u b lic u t i l i t y a c tio n s . . H O
Mixed q u e s tio n s o f law and f a c t . . . . . 12°
P re su m p tiv e v a l i d i t y .................................. . H 2
R equirem ents o f ’’r e a s o n a b le n e s s ” . . . . . H O
Summary and c o n c lu sio n ........................................... 132
X I. FINDINGS AND CONCLUSIONS . . . ............................. 135
BIBLIOGRAPHY.......................................................................................... 143
APPENDIX.............................................................................................. 152
CHAPTER I
THE PROBLEM AND DEFINITIONS OF TERMS USED
I . THE PROBLEM
S tate m e n t o f th e problem . The p u rp o se o f t h i s
stu d y i s to p r e s e n t a survey and an a p p r a i s a l o f th e
a d m in is tr a tiv e pro ced u re employed by th e P u b lic U t i l i t i e s
Commission o f th e S ta te o f C a lif o r n i a . The a p p r a is a l i s
based p r im a r ily upon a co m p arativ e a n a ly s is o f th e p ro c e d u re
employed by th e s t a t e com m issions o f C a l i f o r n i a , W isconsin,
and New York, and th e F e d e ra l Power Commission.
The survey o f th e p ro c e d u re employed by th e s e
a d m in is tr a tiv e ag e n c ie s h a s been approached in somewhat th e
same c h ro n o lo g ic a l o rd e r a s would p r e s e n t i t s e l f in th e
a c tu a l conduct o f a form al p ro ceed in g o r d i s p o s i t i o n o f a
com plaint o r a p p l ic a tio n . T h is ty p e o f o r g a n iz a tio n b e s t
in d ic a t e s th e r e la tio n s h i p o f th e p a r t to th e w hole, and
i s b e lie v e d to le n d i t s e l f tow ard a c l e a r e r and more
co n c ise p r e s e n t a t i o n .
Qne o f th e m ajor problem s which a r i s e s from any
c o n s id e r a tio n o f a d m in is tr a tiv e p rocedure i s t h a t o f th e
s a t i s f a c t i o n o f p ro c e d u ra l due p ro c e ss o f law . This
in v o lv e s th e f l e x i b i l i t y o f a d m in is tr a tiv e p ro c e d u re , th e
adm ission o f ev id en ce , th e req u irem e n t o f n o t i c e and
h e a r in g , and th e f i n a l i t y o f com mission d e te rm in a tio n s on
q u e s tio n s o f f a c t and law .
The problem a t hand i s , t h e r e f o r e , one o f an a ly z in g
th e p ro ced u re o f th e f o u r a d m in is tr a tiv e ag e n e ie s in th e.
l i g h t o f adequacy and e q u ity . Under th e term adequacy
w i l l f a l l th e com parison o f th e fo u r g e n e ra l p ro c e d u re s
and th e degree to which th e y s a t i s f y th e re q u ire m e n ts
h e l d to be n e c e s s a ry f o r th e p r o t e c t i o n o f th e p u b lic
u t i l i t y company on th e p ro d u c e r’ s s id e and th e g e n e ra l
p u b lic on th e consum er’ s s id e . Under th e companion
d i v i s i o n o f e q u ity , th e em phasis i s upon th e s a t i s f a c t i o n
o f due p ro c e ss o f law from th e p ro c e d u ra l s ta n d p o in t. This
p r o c e d u ra l due p ro c e s s o f law , which i s based upon what i s
h e ld to be due and p ro p e r, p resu p p o se s an e q u ita b le
s o lu tio n to d is p u te s . The a d m in is tr a tiv e pro ced u re u t i l i z e d
by th e fo u r commissions u nder study w i l l be examined i n
th e l i g h t o f th e g e n e ra l p r in c ip l e s o f p ro c e d u ra l due
p ro c e ss t h a t have been developed i n th e j u d i c i a l and
a d m in is tr a tiv e t r i b u n a l s .
Im portance o f th e s tu d y . A d m in is tra tiv e a g e n c ie s
w ere, i n p a r t , b ro u g h t i n t o being as a r e s u l t o f th e
combined p re s s u r e o f tim e and d e t a i l upon l e g i s l a t i v e
o f f i c i a l s . I t became in c r e a s in g ly d i f f i c u l t i n th e
fo rm u la tio n o f th e numerous s t a t u t e s to a n t i c i p a t e and
3
p ro v id e f o r th e many d e t a i l e d s i t u a t i o n s which a r i s e from
th e enforcem ent o f th e la w s. The r e s u l t was th e
e s ta b lis h m e n t o f a d m in is tr a tiv e a g e n c ie s .
W ith th e growth o f a d m in is tr a tiv e a g e n c ie s th e r e
h as been an accompanying developm ent o f a d m in is tr a tiv e
law . L a n d is , in g iv in g h i s sta te m e n t r e l a t i v e to th e r i s e
o f a d m in is tr a tiv e law , h a s commented:
H is to r y r e c i t e s t h a t law, as a d m in is te re d by th e
c o u r ts , can become s ta g n a n t and r i g i d . I t was t h i s
t h a t le d i n E n g lish ju ris p ru d e n c e to th e r i s e o f
e q u ity , to th e c r e a tio n o f a new s e r i e s o f ju d g e s,
o f c h a n c e llo r s , whose co n scie n ces would be th e g u id e
to t h e i r d e c is io n s and ?/ho had n o t o n ly th e a u t h o r it y
b u t th e duty to d is r e g a r d th e fo rm alism s o f law . . .
I t i s a s im ila r s e t o f c o n d itio n s and s im ila r n eed s
t h a t have given b i r t h in th e l a s t c e n tu ry to th e new
ty p e o f a d m in is tr a tiv e agency. The in a d e q u a c ie s o f
th e o ld p ro ced u re to meet th e c la im s , th e la c k o f any
power i n th e j u d i c i a l branch o f governm ent to i n i t i a t e
p ro c e e d in g s , th e d e la y s a tte n d a n t upon form alism , th e
want o f t h a t ty p e o f s p e c ia liz e d a p p l ic a tio n t h a t
makes f o r e x p e rtn e s s , th e s e a re th e b a s ic cau ses f o r
a d m in is tr a tiv e law.-*-
E quity and e f f e c tiv e n e s s o f p u b lic u t i l i t y r e g u la tio n
th e r e f o r e r e q u ir e th e m o d ific a tio n o f th e form al and
te c h n ic a l r u le s o f p ro c e d u re which a r e c h a r a c t e r i s t i c o f
th e j u d i c i a l p ro c e s s . The manner and d eg ree o f m o d ific a tio n
as m easured by th e d u a l sta n d a rd o f e f f e c tiv e n e s s and
•*-James M. L a n d is, l,The Development o f th e
A d m in is tra tiv e Com m ission,” An A ddress b e fo re th e Swarth©re
Club o f P h ila d e lp h ia , F e b r u a r y ,27, 1937♦ In clu d ed in
A d m in is tra tiv e Law: Cases and Comments. W alter G e llh o rn ,
p . 7.
e q u ity a re o f m ajor im p o rtan ce. The v a r i a t i o n a s w e ll as
th e p o in ts in common in th e a d m in is tr a tiv e p ro c e d u re o f th e
s t a t e commissions o f C a lif o r n i a , W isconsin, and New York,
p lu s t h a t which i s evidenced i n th e p r a c t ic e s o f th e
F e d e ra l Power Commission w i l l he compared and a n a ly z e d .
F a c ts a re o f m ajor concern in p u b lic u t i l i t y
r e g u la tio n , and th e com m issions a re n o t bound as a r e c o u rts
o f law to a c q u ire t h e i r in fo rm a tio n e n t i r e l y from th e
2
evidence o f w itn e s s e s . The a d m in is tr a tiv e a g e n c ie s h av e ,
th e r e f o r e , adopted more le n i e n t and f l e x i b l e p ro c e d u re s in
a r r iv in g a t th e f a c t s . Such f l e x i b i l i t y o f p ro ced u re
f a c i l i t a t e s th e perform ance o f t h e i r d u t i e s , w h ile a t th e
same tim e th e f e r r e t i n g out o f th e t r u e f a c t s p e r t i n e n t
to p a r t i c u l a r i n v e s t i g a t i o n s a id s i n th e fo rm u la tio n o f
j u s t and e q u ita b le d e c is io n s .
Thus, two g e n e r a lly i r r e c o n c i l a b l e c o n c e p ts, j u s t i c e
and ex p ed ien cy , jo in to g e th e r in c a l l i n g f o r th e e v o lu tio n
o f a d m in is tr a tiv e a g e n c ie s and th e body o f r u le s by which
th e y a r e bound.
O verburdened l e g i s l a t u r e s tu rn e d to th e employment o f
a d m in is tr a tiv e b o d ie s a s a to o l w ith which to f a c i l i t a t e
th e a d m in is tr a tio n o f c e r t a i n te c h n ic a l a re a s o f th e law .
^ S ta te v . S ta te P u b lic S e rv ic e Commission. 95
W ashington 376
5
In a s im i l a r manner th e a d m in is tr a tiv e a g e n c ie s , in t u r n ,
found i t n e c e s s a ry to seek c e r t a i n p ro c e d u re s which would
f a c i l i t a t e th e perform ance o f t h e i r d u t i e s and y e t rem ain
w ith in th e bounds o f due p ro c e s s . Much o f th e c r i t i c i s m
o f r e g u la to r y com missions h a s been d i r e c t e d upon c e r t a i n o f
th e s e p ro c e d u re s r a t h e r th a n upon o r g a n iz a tio n and f u n c tio n .
The im p o rta n t q u e s tio n th e n a r i s e s as to what c o n s t i t u t e s
due p ro c e s s in a d m in is tr a tiv e p ro c e d u re .
Inasm uch as p u b lic u t i l i t y s e r v ic e s may be
c o n sid e re d today as b a s ic n e c e s s i t i e s , i t fo llo w s t h a t th e
p ro ced u re which i s u t i l i z e d in th e c o u rse o f th e
a d m in is tr a tio n o f th e law i s c lo s e ly co n n ected w ith th e
everyday l i v e s o f every i n d iv i d u a l. I t i s w ith t h i s id e a in
mind t h a t th e p r e s e n t stu d y i s p u t f o r t h w ith th e p u rp o se
o f su rv e y in g , a p p r a is in g , and a n a ly z in g th e a d m in is tr a tiv e
p ro ced u re o f th e C a lif o r n i a P u b lic U t i l i t y Commission in
th e l i g h t o f e f f e c t iv e n e s s and j u s t i c e .
I I . DEFINITIONS OF TEEMS USED
Commission. As used in t h i s stu d y , th e word
’’Commission” r e f e r s to th e P u b lic U t i l i t y Commission o f th e
S ta te o f C a l i f o r n i a . The term ’’com m ission” when used as
a common noun r e f e r s to any p u b lic s e rv ic e commission o r
a d m in is tr a tiv e agency.
C om m issioner. The term C o m m is s io n e r," when used
in t h i s s tu d y , r e f e r s to one o f th e members o f th e
Commission. The term " commissioner,” when used as a common
noun, r e f e r s to one o f th e members' o f any p u b lic s e r v ic e
com m ission.
C o rp o r a tio n s . As used in t h i s s tu d y , th e term
" c o rp o ra tio n " in c lu d e s a c o r p o r a tio n , a company, an
a s s o c ia tio n , and a j o i n t a s s o c ia tio n .
E xam iner. The word "exam iner" r e f e r s to th e o f f i c i a l
p re s id in g o v er any h e a r in g . In t h i s s e n s e , th e term
"exam iner" may in c lu d e one o f th e members o f th e Commission.
P e rs o n . The term " p e rs o n ," when u sed in t h i s s tu d y ,
in c lu d e s an i n d iv i d u a l, a f irm , and a c o r p o r a tio n .
P u b lic U t i l i t y . The term " p u b lic u t i l i t y " as u sed
in t h i s stu d y and th e s t a t e s t a t u t e i n C a lif o r n i a , in c lu d e s
every common c a r r i e r , t o l l b rid g e c o r p o r a tio n , p ip e l i n e
c o r p o r a tio n , gas c o r p o r a tio n , e l e c t r i c a l c o r p o ra tio n ,
te le p h o n e c o r p o ra tio n , te le g r a p h c o r p o r a tio n , w ater
c o r p o r a tio n , w h a rfin g e r, warehouseman, and h e a t
c o r p o r a tio n , where th e s e r v ic e i s perform ed f o r o r th e
commodity d e liv e r e d to th e p u b lic o r any p o r tio n
th e r e o f .
P u b lic o r any p o r tio n t h e r e o f . The terra **public
o r any p o rtio n th e re o f,1 1 as used i n t h i s stu d y and th e s t a t e
s t a t u t e o f C a l i f o r n i a , means th e p u b lic g e n e r a lly , o r any
l im ite d p o rtio n o f th e p u b lic in c lu d in g a p e rs o n , p r iv a te
c o r p o r a tio n , m u n ic ip a lity or o th e r p o l i t i c a l s u b - d iv is io n
o f th e S ta te , f o r which th e s e r v ic e i s perform ed o r to
which th e commodity i s d e liv e r e d .
I P I . ORGANIZATION OF THE REMAINDER OF THE THESIS
C hapter I I d e a ls w ith th e v a rio u s m ethods o f
i n s t i g a t i n g o f f i c i a l a c tio n by th e com m issions. Comparison
i s mde o f th e v a r i a t i o n s o f th e s e methods which may e x i s t
among th e fo u r commissions u n d er stu d y . These d if f e r e n c e s
w i l l be an a ly ze d and a p p ra is e d as to th e d e g re e to which
th ey advance o r r e t a r d th e a tta in m e n t o f th e g o al o f e f f e c
t i v e and e q u ita b le r e g u la tio n .
C hapter I I I , i n r e c o g n itio n o f th e f a c t t h a t many
o f th e commissions* d e te rm in a tio n s a r e q u e s tio n e d because
o f j u r i s d i c t i o n a l d is p u te s , c o n s id e rs th e l a t i t u d e o f th e
commissions* j u r i s d i c t i o n g ra n te d by th e s t a t u t e and th e
p ro c e d u ra l ch an n el through which such d e te rm in a tio n s a re
made.
The re q u ire m e n ts r e l a t i n g to n o tic e and h e a rin g f o r
th e s a t i s f a c t i o n o f p ro c e d u ra l due p ro c e ss o f law a re d e a l t
w ith i n C h ap ter IV. The re q u ire m e n ts a r e examined i n l i n e
w ith th e v a rio u s c a p a c i t i e s i n which th e a d m in is tr a tiv e
a g e n c ie s may a c t .
C h ap ter V i s concerned w ith th e scope o f th e
commission h e a r in g s , and th e a p p l ic a tio n o f f l e x i b l e r u l e s
o f p ro c e d u re i n th e p e r m ittin g o f amendments to p le a d in g s
in a manner which i s a t v a ria n c e w ith th e r i g i d i t i e s o f
th e j u d i c i a l p ro c e s s . The c h a p te r exam ines i n view o f due
p ro ced u re th e u se and th e c o n d itio n s to th e u se o f
amendments to p le a d in g s .
C h ap ter VI p e r t a i n s to th e p ro c e d u re o f in fo rm a l
regul& ion t h a t i s ev idenced i n p re h e a rin g c o n fe re n c e s.
The p r o v is io n s and th e p ro ced u re f o r th e employment o f
such p r o v is io n s a re compared and a n a ly z e d .
The p ro ced u re u t i l i z e d d u rin g th e h e a rin g i t s e l f
i s surveyed and analyzed i n C hapter V II. The s ig n i f ic a n c e
o f th e o p p o r tu n ity to e n te r evidence upon th e re c o rd and
cro ss-ex am in e w itn e s s e s i s in v e s tig a te d in th e l i g h t o f
p ro c e d u ra l due p ro c e s s . The v a r i a t i o n among th e
com missions t h a t may e x i s t i n th e r u l e s o f p ro ced u re
follow ed i n th e conduct o f th e h e a rin g s i s s tu d ie d .
C h ap ter V III d e a ls w ith th e r u l e s o f evidence and
th e a d m in is tr a tiv e p ro c e d u re f o r th e ad m issio n o f e v id e n c e .
•It i s re c o g n iz e d t h a t th e r u le s o f ev id en ce and th e
e n te r in g o f evidence upon th e re c o rd a r e phases o f th e
problem co n sid e re d i n th e p reced in g c h a p te r . A s e p a r a te
c h a p te r h a s been d ev o ted to t h i s p ro c e d u ra l a s p e c t, however.
The p ro ced u re o f th e commissions u n d er stu d y i s s tu d ie d
and compared; s i m i l a r l y , th e a d m in is tr a tiv e p ro c e d u re i s
compared w ith th a t o f c o u rts o f r e c o r d . The q u e s tio n o f th e
s a t i s f a c t i o n o f p r o c e d u ra l due p ro c e s s o f la w a g a in e n te r s
th e p i c t u r e o f a d m in is tr a tiv e r e g u l a t i o n .
C hapter IX tu r n s to th e c o n s id e r a tio n o f th e
enforcem ent o f a d m in is tr a tiv e d e te r m in a tio n s . The p ro ced u re
which i s u t i l i z e d i n th e conduct o f summary p ro c e e d in g s
t h a t r e l a t e to enforcem ent i s s tu d ie d , and com parison i s
made o f th e p o in ts a t which th e p ro c e d u re o f th e commissions
d i f f e r . T his in v o lv e s an a n a ly s is o f re c o u rs e to th e
c o u r ts and th e u se o f th e contempt pow er.
The f i n a l i t y o f a d m in is tr a tiv e o rd e rs o r d e c is io n s
i s c o n s id e re d and a n a ly z e d in C h ap ter X. T his c a l l s f o r
th e i n v e s t i g a t i o n o f th e procedure f o r re h e a rin g s by th e
com m issions th e m selv es as w e ll a s 't h e p ro ced u re f o r ap p eal
to th e c o u rts f o r th e rev iew of com m ission d e te r m in a tio n s .
F i n a l i t y o f th e com m ission fin d in g s o f f a c t and c o n c lu sio n s
o f law h in g e upon th e e n t i r e re c o rd o f th e p ro cee d in g s as
w e ll as th e c a p a c ity i n 'which th e a d m in is tr a tiv e agency
was a c t i n g . T h e re fo re , th e e q u ity o f th e p ro ced u re
fo llo w ed in th e co u rse o f th e p ro c e e d in g s i s p u t to t e s t
e i t h e r "by re h e a rin g o r "by ap p eal to and review by th e
c o u r ts .
C h ap ter XT, th e f i n a l c h a p te r o f th e t h e s i s , s e t s
f o r th th e summary o f th e p re v io u s c h a p te rs as to f in d in g s
co n cern in g th e a d m in is tr a tiv e p ro ced u re o f th e fo u r
com m issions. C on clu sio n s a r e made co n cern in g th e p o in ts
o f v a ria n c e i n th e p ro c e d u re o f th e d i f f e r e n t a g e n c ie s .
The c o n c lu s io n s r e l a t e to th e e f f e c t i v e n e s s , e q u ity , and
re a s o n a b le n e s s o f th e p r e s e n t p ro ced u re fo llo w ed by th e
C a lif o r n i a Commission. The assessm en t o f th e C a lif o r n i a
p ro ced u re w i l l be b ased upon th e com parison o f th e p ro
cedure o f th e F e d e ra l Power Commission and th e p u b lic service
com m issions o f C a l i f o r n i a , New York, and W isconsin.
17. SOURCES OF DATA
In making t h i s stu d y , one o f th e c h ie f so u rc e s o f
d a ta was th e Pub Id c U t i l i t i e s Act o f th e S ta te o f
C a lif o r n i a and th e r e l a t e d c o n s t i t u t i o n a l and s t a t u t o r y
p r o v is io n s , w ith 1947 Amendments, a p p ly in g to p u b lic
u t i l i t i e s . A lso o f im p o rtan ce was th e C a lif o r n ia
A d ia in is tra tiv e Code. T i t l e 20, which r e l a t e s to p u b lic
u t i l i t i e s . The m a te r ia l r e l a t i n g to th e P u b lic S e rv ic e
Commission o f th e S ta te o f New York was drawn d i r e c t l y from
11
P u b lic S e rv ic e Law o f th e S ta te o f New York, Complete
w ith Amendments and A n n o tatio n s t o June 1 . 19A5.
S im ila r ly , most o f th e re v e re n c e to th e W isconsin
Commission was based upon th e W isconsin S ta tu t e s R e la tin g
to th e P u b lic S e rv ic e Commission o f W isconsin and th e
R e g u la tio n o f P u b lic U t i l i t i e s . The ad o p ted r u le s o f
p ro c e d u re o f th e s t a t e commissions w ere a ls o u se d , how ever,
most o f th e c o n t r o v e r s i a l p ro c e d u ra l q u e s tio n s were
c o n sid e re d i n th e s t a t u t e s and in th e c o u r t d e c is io n s .
The so u rce o f d a ta concerning th e F e d e ra l Power
Commission c o n s is te d o f two docum ents, The F e d e ra l Power
Act o f Ja n u a ry 1, 19AO. and th e G eneral R u les o f P r a c tic e
and P rocedure e f f e c t i v e Septem ber 11. 19A6. Document
F .P .C . A-27. 'A lso o f s i g n i f i c a n t im p o rtan ce was th e
A d m in is tra tiv e P ro ced u re A c t. Document Number 2AS, 79th
C ongress, Second S e ssio n , 194-6 which p a r a l l e l e d th e
g e n e ra l r u l e s o f p ro c e d u re .
A m ajor so u rce o f in fo rm a tio n la y i n th e d e c is io n s
and o rd e rs o f th e com missions th em selv es and th e d e te rm in a
t i o n s o f c o u r ts o f re c o rd on m a tte rs o f a d m in is tr a tiv e
p ro c e d u re .
CHAPTER I I
OFFICIAL ACTION BY THE COMMISSION
The o f f i c i a l a c tio n o f th e v a rio u s s t a t e
com missions may he prompted by fo rm al o r in fo rm a l co m p lain ts
a g a in s t c e r t a i n p r a c t i c e s o r th e absence o f p a r t i c u l a r
p r a c t i c e s . In g e n e ra l i t may be s a id t h a t c o m p la in ts may
be made to th e com missions by one o f th r e e g ro u p s or a
com bination o f any o f th e g ro u p s. These b road c l a s s i f i e s -
» •
t i o n s c o n s is t o f p e rs o n s , c o r p o r a te b o d ie s and
a s s o c i a t i o n s , and th e com missions th e m se lv e s. T here i s
some s l i g h t d e g re e o f v a r i a t i o n as to th e e x a c t o r ig in
o f p e rm is s ib le co m p lain ts among th e d i f f e r e n t s t a t e s .
In t h e ^ s t a t e o f C a lif o r n i a , co m p lain t may be made by th e
Commission o f i t s o m m otion o r:
. . .- b y any c o rp o ra tio n o r p e rso n , chamber o f
commerce, b o ard o f tr a d e , la b o r o r g a n iz a tio n , o r any
c i v i c , com m ercial, m e r c a n tile , t r a f f i c , a g r i c u l t u r a l
o r m a n u factu rin g a s s o c ia tio n o r o r g a n iz a tio n o r any
body p o l i t i c o r m u n ic ip a l c o r p o r a tio n . . .-* •
The f a c t t h a t th e C a lif o r n ia Commission may make com plaints
o f i t s o m m otion i s o f g r e a t im p o rta n c e . One o f th e
e a r l i e r c r i t i c i s m s le v e le d a t s t a t e com missions was based
on t h e p a s s iv e n a t u r e o f th e u t i l i t y r e g u l a t i o n . The f a c t
P u b lic U t i l i t i e s Act o f th e S ta te o f C a l i f o r n i a .
S e c tio n 60.
13
t h a t th e com m issions could ta k e th e i n i t i a t i v e te n d ed to
in c r e a s e th e e f f e c t iv e n e s s o f th e r e g u la to r y p r o c e s s .
By C a l i f o r n i a p r a c t i c e i f an in fo rm a l com plaint
can n o t be s e t t l e d to th e s a t i s f a c t i o n o f th e f i r s t p a r ty
and th e Commission, form al p ro c e e d in g s may be i n s t i t u t e d
by th e Commission o f i t s own m o tio n . The s u b je c t o f th e
c o m p la in t, o f c o u rs e , must be o f s u f f i c i e n t im p o rtan ce in
th e o p in io n o f th e Commission b e f o r e p ro c e e d in g s w i l l be
i n s t i g a t e d . T h is power o f com m ission i n i t i a t i v e te n d s
tow ard a more a l e r t and a g g re s s iv e body, and i n e f f e c t i t
s e rv e s as an a id f o r th e prom otion o f q u ic k e r s e ttle m e n t o f
c o m p lain ts by in fo rm a l n e g o t i a t i o n s . The p rim ary
im portance o f th e i n i t i a t i v e pow er, how ever, l i e s i n th e
a b i l i t y o f th e C a lif o r n i a Commission to commence p ro c e e d in g s
w ith o u t any co m p lain t, fo rm a l o r in f o rm a l, on th e p a r t
o f any p e rso n o r body. For e f f e c t i v e r e g u la tio n i t i s
n e c e s s a ry t h a t a d m in is tr a tiv e a g e n c ie s have th e means f o r
c a rry in g o u t p o l i c i e s , and th e i n i t i a t i v e power i s one o f
th e im p o rta n t s te p s in th e d i r e c t i o n o f v ig o ro u s and
e q u ita b le r e g u la tio n . I t h a s been s t a t e d t h a t c e r t a i n
p o p u la r g rie v a n c e s can o f te n be sensed some tim e p r i o r
to th e f i l i n g o f form al e o m p la in ts. The power o f th e
C a lif o r n i a Commission t o ta k e th e i n i t i a l s te p in
i n s t i t u t i n g form al p ro c e e d in g s f a c i l i t a t e s th e a l l e v i a t i o n
14
o f th e s e g rie v a n c e s .
I t i s a ls o w orthy o f n o te t h a t any p u b lic u t i l i t y
in C a l i f o r n i a h as th e r i g h t to com plain on any o f th e
grounds upon which co m p lain ts a r e allo w ed to be f i l e d by
o th e r p a r t i e s . ^ S im il a r ly , in th e s t a t e o f W isconsin
any p u b lic u t i l i t y may a ls o make co m p lain t co n cern in g any
m a tte r a f f e c t in g i t s own p ro d u ct o r s e r v i c e . ^ A lthough
t h i s p ro c e d u ra l ch an n el i s open to th e p u b lic u t i l i t i e s ,
th e r e i s l i t t l e u se o f i t . When th e s u b je c t o f some
problem i s b ro u g h t b e f o r e th e com m ission by a p u b lic
u t i l i t y company, i t i s - u s u a l l y in th e form o f an a p p l ic a
t i o n r a t h e r th an a c o m p la in t. For exam ple, when th e
q u e s tio n o f r a t e s i s r a i s e d and b ro u g h t b e fo re th e
a d m in is tr a tiv e body by a group o f th e consumers o f th e
u t i l i t y s e r v ic e , i t i s i n th e form o f a co m p lain t.
When th e s u b je c t o f r a t e s i s b ro u g h t f o r t h by a p u b lic
u t i l i t y company, how ever, i t i s u s u a lly in th e form o f an
a p p l i c a t i o n re q u e s tin g th e p e rm issio n o f th e com m ission
t o in c r e a s e o r o th e rw is e change th e e x i s tin g r a t e
s t r u c t u r e . The P u b lic S e rv ic e Law i n e f f e c t in New York
2 P u b lic U t i l i t i e s Act o f th e S ta te o f C a l i f o r n i a .
S e c tio n 62.
^ W isconsin S t a t u t e s R e la tin g to th e P u b lic S e rv ic e
Commission o f W isconsin and th e R e g u la tio n o f P u b lic
U t i l i t i e s . C hapter 196, S e c tio n 30
15
and th e F e d e ra l Power Act do n o t have s p e c i f i c p r o v is io n s
whereby th e p u b lic u t i l i t i e s may com plain on any o f th e
grounds so p e rm itte d by o th e r p a r t i e s . The ab sen ce o f
such a p r o v is io n may probably be e x p la in e d by th e u se o f
fo rm a l a p p l ic a tio n s in s te a d o f c o m p la in ts. A gain, in
th e s t a t e o f C a l i f o r n i a , th e o n ly d e v ia tio n i n p ro ced u re
when th e p u b lic u t i l i t y companies e x e rc is e t h i s r i g h t l i e s
i n th e conduct o f th e h e a rin g i t s e l f . The co m p lain t th u s
s e t f o r t h may be h e a rd ex p a r te by th e Com m ission-or may
be serv ed upon any p a r t i e s d e s ig n a te d by th e Com m ission.^
There i s some v a r ia tio n a s to th e p ro c e d u re
u sed i n th e f i l i n g o f co m p lain ts which concern d i f f e r e n t
a r e a s o f p u b lic u t i l i t y problem s. The d is c u s s io n o f
th e o r i g i n o f c o m p la in ts to t h i s p o in t h a s been concerned
w ith such a s p e c ts as s e r v ic e s , g e n e r a l p r a c t i c e s , and
b ro ad p o l i c i e s . I n tu rn in g to th e p a r t i c u l a r q u e s tio n o f
th e re a s o n a b le n e s s o f r a t e s , th e r e l a t e d p r o v is io n f o r
f i l i n g form al c o m p la in ts may be se e n .
C om plaints as to th e " re a s o n a b le n e s s o f r a t e s , 1 ’
- how ever, charged by p u b lic u t i l i t y companies c a n n o t be
e n t e r ta in e d by th e C a lif o r n ia Commission, e x c e p t upon
^ P u b lic U t i l i t i e s Act o f th e S ta te o f C a l i f o r n i a .
S e c tio n 62.
16
I t s own m otion, u n le s s such c o m p la in ts a re sig n e d and
v e r i f i e d by:
. . . th e mayor o r th e p r e s id e n t o r chairm an o f th e
b oard o f t r u s t e e s o r a m a jo r ity o f th e c o u n c il,
com mission, o r o th e r l e g i s l a t i v e body o f th e c i t y and
co unty, o r c i t y and t o m , i f any, w ith in which th e
a lle g e d v i o l a t i o n o c c u rre d , o r n o t l e s s th a n tw en ty -
f i v e consumers o r p u rc h a s e rs o r p r o s p e c tiv e consumers
o r p u rc h a s e r s , o f such g a s , e l e c t r i c i t y , w a te r o r
te le p h o n e .*
I n s h o r t, th e r e i s a s l i g h t d if f e r e n c e in th e p ro ced u re
employed by th e C a lif o r n ia Commission i n th e f i l i n g o f
c o m p la in ts. I f a co m p lain t d e a ls w ith th e re a s o n a b le n e s s
o f r a t e s , i t must be made by th e o f f i c i a l organ or.
o f f i e e r o f a governm ental u n i t o r by tw e n ty -f iv e consum ers
o f th e s e r v ic e . F u rth e r , com plaint may be made by
p r o s p e c tiv e consum ers, and t h i s avenue m ight be one th ro u g h
which th e p u rp o se o f th e p r o v is io n may be circu m v en ted .
T here i s no such d i s t i n c t i o n betw een th e
p ro ced u re employed in r a t e co m p lain ts and th o s e d e a lin g
w ith o th e r g rie v a n c e s in e i t h e r W isconsin o r Hew York.
In Hew Y ork, co m p lain ts may be made to th e commission by
nany p e rso n o r c o rp o ra tio n a g g rie v e d ” w ith th e r e being no
l i n e o f d e m a rc a tio n betw een r a t e co m p lain ts and g e n e ra l
s e rv ic e c o m p la in ts .0 S im ila r ly a l l form al co m p lain ts
5 I b i d . , S e c tio n 60.
^ P u b lic S e rv ic e Law o f th e S ta te o f Hew York.
A r t i c l e 3, S e c tio n 4.B, P a ra g ra p h 2.
17
made a g a i n s t any p u b lic u t i l i t y in th e S ta te o f W isconsin
by * rany m e r c a n tile , a g r i c u l t u r a l o r m a n u fa ctu rin g s o c ie ty
o r by any body p o l i t i e o r m u n icip al o r g a n iz a tio n o r by any
tw e n ty - f iv e persons*1 a r e h an d led i n th e same m anner. The
W isconsin s t a t u t e makes no c o n tr a s t a s t o co m p lain ts
d e a lin g w ith d i f f e r e n t a r e a s o f r e g u l a t i o n . The law
s t a t e s t h a t upon co m p lain t th e Commission w i l l i n v e s t i g a t e ,
as i t deems n e c e s s a ry , th e co m plaints which contend t h a t :
. . . any o f th e r a t e s , t o l l s , c h a rg e s o r sc h e d u le s
o r any j o i n t r a t e o r any r e g u la tio n , m easurem ent,
p r a c t i c e o r a c t a f f e c t i n g o r r e l a t i n g to th e p r o d u c tio n
tr a n s m is s io n , d e liv e r y o r f u r n is h in g o f h e a t, l i g h t ,
w ater o r power o r any s e r v ic e i n co n n e c tio n th e re w ith
o r th e conveyance o f any te le p h o n e m essage o r any
s e rv ic e i n co n n e c tio n th e re w ith i s in any r e s p e c t
u n re a s o n a b le , i n s u f f i c i e n t o r u n j u s t l y d is c r im in a to r y ,
o r t h a t any s e r v ic e i s in a d e q u a te o r cannot be
o b ta in e d . . . '
Thus i t i s t h a t i n C a lif o r n i a th e r e i s a s l i g h t
.d iffe re n c e i n th e p ro ced u re u t i l i z e d i n th o s e d is p u te s
o r q u e s tio n s d e a lin g w ith r a t e s a s compared to th o s e o f
o th e r g e n e ra l p r a c t i c e s and s e r v i c e s . The only
s i g n i f i c a n t ad v a n ta g e o f t h i s d if f e r e n c e l i e s in th e
r e s t r i c t i o n o f th e co m p lain ts a s to th e r e g u la to r y a r e a .
The p a r t i e s making th e com plaint m u st, in e f f e c t , be duly
i n t e r e s t e d in th e p ro c e e d in g s as consum ers o r p r o s p e c tiv e
7
W isconsin S t a t u t e s R e la tin g t o th e P u b lic S e rv ic e
Commission and th e R e g u la tio n o f P u b lic U t i l i t i e s .
C hapter 196, S e c tio n 26
consum ers o f th e u t i l i t y s e r v ic e . I t does sta n d a s one
b a r r i e r to th e c o n tin u a l h a ra s s in g o f a u t i l i t y company by
a s i n g l e consumer o r i n d iv i d u a l. The c e n tr a l theme o f t h i s
p r o v is io n i s to th e e f f e c t t h a t th e r a t e s d i r e c t l y a f f e c t
o n ly th e a c tu a l o r p r o s p e c tiv e consum ers o f th e s e r v ic e .
On th e o th e r hand, th e s e rv ic e s and g e n e ra l p r a c t i c e s may
a f f e c t o th e r s i n such m a tte rs as s a f e ty to th e in d iv i d u a l
and th e p r e s e r v a tio n o f p u b lic p r o p e r ty . The W isconsin
p r o v is io n , a g a in , p ro v id e s f o r th e f i l i n g o f c o m p la in ts
by tw e n ty -f iv e p e rs o n s . In t h i s way th e W isconsin method
in c lu d e s th e a d v a n tag e s o f th e d i s t i n c t i o n made by th e
C a l i f o r n i a s t a t u t e .
I . TYPES A M D FORMS OF COMPLAINTS A M D APPLICATIONS
In fo rm al c o m p la in ts . In fo rm a l co m p lain ts a r e th o s e
which a re cap ab le o f being re s o lv e d by o th e r th a n form al
p ro c e e d in g s . They may ta k e th e form o f c o n fe re n c e s
between, th e two p a r t i e s through th e a d m in is tr a tiv e agency
o r p e r s o n a l c o n s u lta t io n th rough th e u se o f l e t t e r s o r
te le p h o n e d is c u s s io n s . F u r th e r , complaints made to th e
com m issions which la c k a l l o f th e re q u ire m e n ts o f th e
fo rm a l com plaint a s to form a r e g e n e r a lly h an d led as
in fo rm a l c o m p la in ts. Such d e f i c i e n c i e s , how ever, may be
rem edied by th e p a r t i e s making th e co m p lain t, o r th e
19
com mission may d e c id e to commence fo rm a l p ro c e e d in g s on i t s
own m o tio n .
I t i s through t h i s channel t h a t many o f th e
co m p la in ts can he s e t t l e d . In many in s ta n c e s th e p u b lic
u t i l i t y company as w e ll a s th e a d m in is t r a tiv e body u nder
whose s u p e rv is io n i t o p e r a te s i s , n o t o n ly openly r e c e p tiv e
to such in fo rm a l c o m p la in ts b u t i s to a d eg ree g r a t e f u l
f o r th e m .. The s u b je c t o f th e co m p lain t may be o f such a
n a tu r e t h a t i t s remedy may se rv e a s a p r e v e n tiv e f o r
l a t e r ex p en siv e damage s u i t s o r o th e r l i t i g a t i o n .
T h e re fo re , th e a l e r t n e s s o f th e p u b lic to such f a c t o r s
as th e f a i l u r e o f s a f e t y d e v ic e s o r th e la x n e s s i n t h e
perform ance and d i s t r i b u t i o n o f s e r v ic e s se rv e s in th e
c a p a c ity o f g e n e ra l i n s p e c ti o n . I t i s in t h i s way a
d e f i n i t e advantage o f th e u t i l i t y company.
A side from t h i s a s p e c t o f th e in fo rm a l c o m p la in t,
i t s u s e i s encouraged by both th e a d m in is tr a tiv e commissions
and th e u t i l i t y com panies because t h e r e i s a saving a s to
tim e as w e ll as expense by a l l p a r t i e s concerned. Thus,
as a p ro c e d u ra l' t o o l , th e in fo rm a l ty p e o f co m p lain t
and th e in fo rm a l p a t t e r n o f r e g u la tio n t h a t u s u a lly
accom panies i t i s a u s e f u l ex p e d ien t f o r any overw orked
b u t c o n s c ie n tio u s com m ission. I n term s o f th e number
o f n e g o t ia t io n s which come b e fo re th e v a rio u s com m issions,
20
th e in fo rm a l co m p lain t o cc u p ies an im p o rta n t p o s i t i o n
i n th e p ro c e d u ra l scheme o f p u b lic u t i l i t y r e g u la tio n .
The C a lif o r n ia Commission, f o r exam ple, d is p o s e d o f 1,964-
in fo rm a l co m p la in ts between J u ly 1 , 194*7, and Ju n e 30,
194S. For th e same p e rio d , 224 fo rm al p ro c e e d in g s were
d e c id e d .^
Concerning th e r e l a t i v e im p o rtan ce o f in fo rm a l
c o m p la in ts, th e C a lif o r n i a Commission h a s s a id r
One o f th e most im p o rta n t a c t i v i t i e s o f th e
C om m ission^ s t a f f as f a r a s in d iv id u a l custom ers a r e
concerned in v o lv e s th e in fo rm a l h a n d lin g o f co m p lain ts
about s e r v ic e , r a t e s , r u le s and r e g u l a t i o n s , which a re
brought to th e a t t e n t i o n o f th e Commission by
in d iv id u a l cu sto m e rs, by p e r s o n a l v i s i t , te le p h o n e , o r
l e t t e r . °
The p o s it io n o f th e in fo rm a l co m p lain t i n com m ission
r e g u la tio n i s an im p o rta n t one. I t i s a m a tte r o f s p e c ia l
i n v e s t i g a t i o n by th e commission s t a f f , and i s th e most
d i r e c t c o n ta c t betw een th e a d m in is tr a tiv e agency and
th e consumers o f th e p u b lic u t i l i t y s e r v ic e .
I t sh o u ld be n o te d , how ever, t h a t in fo rm a l
co m p lain ts u s u a lly d e a l w ith th e l e s s c o n t r o v e r s i a l and
p e rh a p s th e l e s s c o n s e q u e n tia l i s s u e s . The more im p o rta n t
ft
Annual R e p o rt. P u b lic U t i l i t i e s Commission. S ta te
o f C a l i f o r n i a . N in e ty -N in th F i s c a l Y ear, J u ly 1 , 1947 to
Ju n e 30, 1943, pp* 22-24
^ I b i d . , p . 22
21
q u e s tio n s a r e g e n e r a lly ch an n eled th ro u g h fo rm a l c o m p la in ts.
Formal c o m p la in ts . Most o f th e more im p o rta n t and
c o n t r o v e r s i a l i s s u e s concerning p u b lic u t i l i t y r e g u la tio n
a r e re s o lv e d th ro u g h i n v e s t i g a t i o n s r e s u l t i n g from
fo rm a l c o m p la in ts. These fo rm a l co m p lain ts c a l l f o r form al
p ro c e e d in g s to be h e ld a t a s p e c i f i e d tim e and p la c e .
In fo rm a l c o m p la in ts, as p r e v io u s ly d is c u s s e d , may ta k e any
form , w r i tte n o r o r a l , b u t fo rm a l co m p lain ts m ust be
w r i t t e n . The u n d e rly in g re a s o n f o r th e re q u ire m e n t th a t
th e l a t t e r must be w r i tte n i s to p re v e n t th e undue
b ro ad en in g o f th e is s u e s i n th e subsequent h e a rin g and to
p ro v id e th e p a r t y a g a in s t whom th e com plaint i s made w ith
th e s p e c if ic i s s u e s o f th e p ro c e e d in g . The s t a t u t o r y
p r o v is io n g o v ern in g co m p lain ts i n C a lif o r n ia s e t s f o r th
t h a t such co m p lain ts must meet th e req u irem e n t o f:
. . . s e t t i n g f o r t h any a c t o r th in g done o r
o m itted to be done by any p u b lic u t i l i t y in c lu d in g
any r u l e , r e g u la tio n o r ch a rg e h e r e to f o r e e s ta b lis h e d
o r f ix e d by o r f o r any p u b lic u t i l i t y , i n v i o l a t i o n ,
o r claim ed to be in v i o l a t i o n , o f any p r o v is io n o f 0
law o r o f any o rd e r or r u l e o f th e com m ission . . .
The form o f th e fo rm al co m p lain ts as they a r e made to th e
C a lif o r n i a Commission i s s e t f o r t h i n th e A d m in is tra tiv e
P u b lic U t i l i t i e s Act o f th e S ta te o f C a l i f o r n i a .
S e c tio n 60.
Code. I t p r o v id e s , i n p a r t , t h a t th e name and p o s t - o f f i c e
a d d re s s o f b o th o r a l l th e p a r t i e s to th e p ro cee d in g must
he i n d i c a t e d . ^ F u r th e r , th e A d m in is tra tiv e Code r e f l e c t s
th e s t a t u t e i n th e req u irem en t o f th e f u l l and c l e a r
sta te m e n t o f th e s p e c i f i c a c t com plained o f , to g e th e r
w ith such o th e r f a c t s as w i l l g iv e th e Commission and
th e d efen d a n t a f u l l u n d e rsta n d in g o f th e s i t u a t i o n . The
co m p lain t must a ls o s e t f o r t h d e f i n i t e l y th e e x a c t r e l i e f
12
w h ich -is- d e s ir e d by th e c o m p la in a n t. T his C a lif o r n i a
p r o v i s i o n .i s one which i s common to th e o th e r com m issions.
The F e d e ra l Power Commission s t a t e s t h a t fo rm a l'c o m p la in ts
s h a l l be so drawn a s f u l l y and co m p letely to in fo rm th e
d e fe n d a n t p a r t i e s and th e Commission o f th e f a c t s
c o n s t i t u t i n g th e grounds o f th e c o m p la in t, th e p r o v is io n s
o f th e s t a t u t e s , r u l e s , and o r d e r s r e l i e d upon, th e
in j u r y com plained o f , and th e r e l i e f s o u g h t . ^
The a c t u a l form o f th e fo rm a l co m p lain t i s so
n e a r ly i d e n t i c a l among th e s t a t e com missions and th e
F e d e r a l Power Commission as t o make any a p p l ic a b le and
^ ' C a lif o r n i a Admiiii s t r a t I ve Code. T i t l e 20 , P u b lic
U t i l i t i e s , A r t i c l e 2 , P aragraph 9 .
Coe, c i t .
^ F e d e ra l Power Commission. G eneral R u les In c lu d in g
' R ules o f P r a c t i c e and P ro c e d u re . E f f e c t i v e Septem ber 11,1946,
P a r t 1 , R ule 6 e ( 2 ) . (IS Code o f F e d e r a l R e g u la tio n s 1 .6 )
23
s i g n i f i c a n t d i s t i n c t i o n im p o s s ib le . The form o f a fo rm al
com plaint b e fo r e th e C a l i f o r n i a Commission i s in d ic a te d i n
th e A ppendix.
I I . APPLICATIONS
A p p lic a tio n s . Whereas fo rm al c o m p la in ts a re made to
th e com m issions to seek r e l i e f from c e r t a i n a c t s done
o r o m itte d to be done, t h e i r u se by th e p u b lic u t i l i t y
companies i s l i m i t e d . The u t i l i t y com panies do r e l y ,
how ever, upon fo rm al a p p l ic a tio n s r a t h e r h e a v i l y . These
a p p l ic a tio n s a r e a c tu a l ly a means o f i n s t i g a t i n g th e
o f f i c i a l a c tio n o f an a d m in is t r a tiv e agency i n a form al
p ro c e e d in g , th e purpose o f which i s to re q u e s t and o b ta in
th e a u t h o r it y o f th e s t a t e a g e n c ie s to p erfo rm an a c t ,
o r c l a r i f y a r u l e by th e is s u a n c e o f a d e c la r a to r y
o r d e r .
As to th e form o f a p p l i c a t i o n s , t h e r e m ust be s e t
f o r t h th e name and a d d re ss o f th e a p p lic a n t to g e th e r w ith
th e f u l l f a c t s on which th e a p p l ic a tio n i s b a s e d . In
th e S ta te o f C a l i f o r n i a , th e fo rm al a p p l i c a t i o n must
s t a t e s p e c i f i c a l l y th e o r d e r , a u t h o r iz a ti o n , p e rm is s io n ,
o r c e r t i f i c a t e d e s ir e d as w e ll as a r e f e r e n c e to th e p a r t i
c u la r p r o v is io n o f th e P u b lic U t i l i t y Act p ro v id in g f o r samel^
-* -4 C a lif o r n ia A d m in is tra tiv e Code. A r t ic le 3,
P arag rap h T71
I n t h i s manner, th e fo rm a l a p p l ic a tio n c lo s e ly p a r a l l e l s
th e fo rm a l com plaint a s to c o n te n ts . The a p p l i c a t i o n s
b e f o r e th e P u b lic S e rv ic e Commission o f th e S ta te o f Mew
York and th e F e d e ra l Power Commission r e f l e e t th e
re q u ire m e n ts o f th e C a lif o r n i a agency.
The form and -c o n te n ts o f th e a p p l ic a tio n a r e o f
s i g n i f i c a n c e in a c o n s id e r a tio n o f a d m in is tr a tiv e
p ro c e d u re . The a p p l i c a t i o n i s a t o o l which s e ts I n to
m otion th e m achinery o f a d m in is tr a tiv e r e g u la tio n , and i s
th e b a s i s f o r su b se q u en t p ro c e e d in g s.
CHARTER I I I
25
ESTABLISHMENT OF JURISDICTION
The l a t i t u d e o f a d m in is tr a tiv e p ro c e e d in g s i s
d eterm in ed th ro u g h J u r i s d i c t i o n a l "boundaries "by th e
s t a t u t e s u nder which th e v a rio u s com m issions f u n c tio n . The
g e n e r a l b a s ic f a c t o r which a f f ir m s th e J u r i s d i c t i o n o f
th e a d m in is tr a tiv e com missions i s th e s t a t u s , i n p u b lic
u t i l i t y r e g u la tio n , o f th e company o r companies concerned.
Much o f th e c o n tro v e rs y which a r i s e s concerning commission
J u r i s d i c t i o n o v er c o rp o ra te b o d ie s h in g e s upon th e a p p lic a
t i o n o f th e p u b lic u t i l i t y c o n c e p t. Once a company c ro s s e s
th e l i n e and a t t a i n s th e s t a t u s o f a p u b lic u t i l i t y i t
f a l l s w ith in th e J u r i s d i c t i o n o f t h e p u b lic u t i l i t y
ag en cy . T h e re fo re , m ost o f th e d is p u te s r e l a t i n g to
com m ission J u r i s d i c t i o n a r e r e s o lv e d th rough th e
d e te rm in a tio n o f th e s ta tu s o f th e c o rp o ra te body.
In C a l i f o r n i a , where s u b s t a n t i a l o b je c tio n s a s to
th e J u r i s d i c t i o n o f th e Commission have been r a i s e d , th e
Commission, though i t may b e lie v e i t p o s s e s s e s J u r i s d i c t i o n ,
may d ism iss c o m p la in ts i n o rd e r to b r in g speedy
and a u t h o r i t a t i v e d e te rm in a tio n o f such q u e s tio n s
b e f o r e p ro ceed in g w ith long and ex p e n siv e i n v e s t i g a t i o n s
26
and h e a r i n g s . I t may be i n d i c a t e d , t h e r e f o r e , t h a t th e
g e n e r a l q u e s tio n o f th e j u r i s d i c t i o n o f s t a t e and f e d e r a l
com m issions i s e s ta b li s h e d by c o n s t i t u t i o n a l or
l e g i s l a t i v e a c t s w ith such b e in g tem bered by th e
i n t e r p r e t a t i o n s o f th e c o u r ts . The C a lif o r n i a C o n s titu tio n
s e t s f o r t h numerous ty p e s o f c o r p o r a tio n s and a s s o c ia tio n s
w hich a re d e c la r e d to be p u b lic u t i l i t i e s , and th e
C a lif o r n i a P u b lic U t i l i t y Commission i s g iv en Rsuch power
and j u r i s d i c t i o n to su p e rv is e and r e g u la te p u b lic u t i l i t i e s
. . . as s h a ll b e c o n fe rre d upon i t by th e L e g i s l a t u r e ,
and th e r i g h t o f th e L e g is la t u r e to c o n fe r powers upon
th e r a i l r o a d com m ission r e s p e c tin g p u b lic u t i l i t i e s i s
d e c la r e d to be p le n a ry and to be u n lim ite d by any
p r o v is io n o f t h i s c o n s t i t u t i o n .
The W isconsin P u b lic S e rv ic e Commission h a s
j u r i s d i c t i o n to p r e s c r ib e s im ila r g e n e ra l r u l e s and
r e g u la tio n s f o r th e su p e rv la o n o f th e p u b lic u t i l i t i e s
w ith in t h a t s t a t e . 3 i t i s g e n e r a lly u n d e rsto o d t h a t
th e com m issions have j u r i s d i c t i o n o v e r th e component a s p e c ts
o f p u b lic u t i l i t y p ro b lem s. For exam ple, i t h as been h e ld
^ E ast Bay M u n ic ip al U t i l i t y D i s t r i c t . 24 C.R.C. 967
(3.924)
2 C o n s titu tio n o f th e S ta te o f C a l i f o r n i a . A r t i c l e
X II, S e c tio n 23.
^ W isconsin S t a t u t e s , l o c . c i t ♦. S e c tio n 1 9 6 .0 2 .
t h a t th e W isconsin Commission h as J u r i s d i c t i o n to p r e s c r i b e
g e n e ra l r u l e s and r e g u la tio n s w ith r e s p e c t to such s u b je c ts
a s : d e n ia l o f s e r v ic e , in s p e c ti o n o f s t r u c t u r e s and
equipm ent, o b lig a tio n s o f th e u t i l i t y company upon
r e l o c a tio n o f p o le s , upon change o f ty p e o f s e r v ic e ,
p r o v is io n s c o v e rin g g u a r a n t ie s and d e p o s its to a s s u re
payments o f b i l l s , re q u ire m e n ts as to b i l l i n g c o s ts ,
p r o v is io n s f o r lo c a ti o n o f m e te rs . T h is J u r i s d i c t i o n
h a s been u p h e ld .a lth o u g h th e s e p a r t i c u l a r s u b je c ts were
n o t s p e c i f i c a l l y in c lu d e d among th e s u b je c ts f o r which
e x p l i c i t a u t h o r i t y to p r e s c r i b e g e n e ra l r u l e s and
r e g u la tio n s i s g ra n te d by s t a t u t e . ^
I n N ew York th e g e n e ra l j u r i s d i c t i o n o f th e P u b lic
S e rv ic e Commission i s lik e w is e b ased upon c o n s t i t u t i o n a l
and s t a t u t o r y p r o v is io n s .^ An e la b o r a tio n was r e c e n tly
made to th e e f f e c t t h a t when a c o rp o ra tio n ?/hich o b ta in s
a f r a n c h is e , s e c u re s a u t h o r i t y from th e Commission to
e x e rc is e th e f r a n c h is e , and c o n s tr u c ts an e l e c t r i c p la n t
f o r th e a c t u a l f u l f i l l m e n t o f th e f r a n c h is e p r o v is io n s ,
i t becomes s u b je c t, a t th e I n s t a n t i t b e g in s s e r v ic e ,
to th e p r o v is io n s o f th e P u b lic S e rv ic e Law and to a l l
4- Re Revision of Service Rules for Electric
Utilities. 40 P.U.R. (M.S.).99 (1941)
P u b lic S e rv ic e Law of th e S ta te of Hew Y ork. Complete
w ith Amendments and Annotations to June 1, 194-5
28
6
th e powers o f th e l e g i s l a t u r e re g a rd in g p u b lic u t i l i t i e s .
The F e d e ra l Power Commission, i n th e c o u rse o f th e
a d m in is tr a tio n and enforcem ent o f th e N a tu ra l Gas A ct,
s e t s f o r t h c l a s s i f i c a t i o n s as to j u r i s d i c t i o n a l s t a t u s .
T hese c l a s s i f i c a t i o n s o f p erso n s engaged i n th e
t r a n s p o r t a t i o n o r s a l e o f n a t u r a l g as a r e fo rm u la te d on
th e b a s i s o f a l l a v a i l a b l e in fo rm a tio n . T his in c lu d e s
d a ta r e p o r te d to th e Commission by such p erso n s a s w e ll
7
as in fo rm a tio n p ro v id e d by s t a f f i n v e s t i g a t i o n . These
c l a s s i f i c a t i o n s a r e t e n t a t i v e and n o t b in d in g on th e
p e rso n s o r th e Commission. In th e e v e n t t h a t any p e rso n
d is a g r e e s w ith th e c l a s s i f i c a t i o n s e t f o r t h and r e f u s e s
t o comply w ith th e re q u ire m e n ts o f th e N a tu ra l Gas A ct,
fo rm a l p ro cee d in g s may be i n s t i t u t e d by th e Commission
f o r th e purpose o f r e s o lv in g th e q u e s tio n . Thus, th e
d e te rm in a tio n o f j u r i s d i c t i o n a l s t a t u s u n d er th e N a tu ra l
Gas Act c e n te r s upon c l a s s i f i c a t i o n s under th e term s
o f S e c tio n 1 o f th e A ct. I f th e s t a t u s i s q u e s tio n e d ,
th e is s u e i s channeled th ro u g h a form al h e a r in g .
Old F orge E l e c t r i c C o rp o ra tio n . 41 P.U .R . ( N .S .)
107 (19411
7
FPC, R u les o f P r a c t i c e and P ro c e d u re . 18 CFR
C hapter I , S u b ch ap ter A, P a r t 02, S e c tio n 0 2.51
^Loc. c i t .
On June 26, 194-5, th e F e d e r a l Power Commission
approved th e fo llo w in g summation con cern in g th e j u r i s d i c t i o n
a l s t a t u s o f p e rs o n s owning o r o p e r a tin g c e r t a i n f a c i l i t i e s :
The ow nership or. o p e r a tio n o f f a c i l i t i e s f o r th e
tr a n s m is s io n o f e l e c t r i c energy from a p o in t w ith in
a S ta te t o a f o r e ig n c o u n try makes one a f,p u h lic
u t i l i t y * ' u n d er th e F e d e ra l Power A ct, even though
th e p o r tio n o f such f a c i l i t i e s i n t h i s c o u n try i s
lo c a te d w holly w ith in such S t a t e .^
The F e d e ra l Power Commission i s i n charge o f th e lic e n s i n g
- o f w a te r power p r o j e c t s on w a te rs o v er whieh C ongress h as
10
j u r i s d i c t i o n . T h is j u r i s d i c t i o n a ls o in c lu d e s la n d s
1 1
and dams o f th e U n ite d S t a t e s .
P u b lic u t i l i t y s t a t u s . H olding th e s t a t u s o f a
p u b lic u t i l i t y as i t i s d e fin e d by th e r e s p e c tiv e
s t a t u t e s i s t h e r e f o r e th e f o c a l p o in t in d e te rm in in g th e
j u r i s d i c t i o n o f p u b lic s e r v ic e com m issions. I h i l e th e
s t a t u t e s o u t l i n e th e g e n e ra l d e f i n i t i o n o f a p u b lic
u t i l i t y by a s s e r t i n g t h a t which w i l l come u n d er th e law ,
th e r e s t i l l rem ain s some n e c e s s i t y f o r j u r i s d i c t i o n a l
f in d in g s by com m issions. I t h a s been w e ll s t a t e d by th e
^ l"b id . . P a r t 03, S e c tio n 0 3 .2 7 .
I b i d . . P a r t 01, S e c tio n 0 1 .2 ( a ) .
Loc. c i t .
30
W isconsin Commission t h a t i t i s th e a c t u a l d e d ic a tio n and
a c c e p ta n c e o f p u b lic u t i l i t y s e r v ic e as evidenced by
a c ts t h a t i s o f m ajor im p o rta n ce. Such d e d ic a tio n i s
more s tr o n g ly d em o n strate d by what i s a c t u a l l y done
12
th a n by what i s p r o f e s s e d , in te n d e d , o r p roposed.
A cts and a c tu a l c o n d itio n s a re s i g n i f i c a n t c o n s id e r a tio n s
i n t h e a tta in m e n t o f a p a r t i c u l a r s t a t u s , and th e
s t a t u s i s in tu r n im p o rta n t in th e d e te rm in a tio n o f
j u r i s d i c t i o n .
A d m in is tra tiv e p ro ced u re i s n o t s e t f o r t h as a
ch a n n el th ro u g h which commission may e x e r t undue in f lu e n c e
o v er th e management o f u t i l i t y com panies. I t was p o in te d
o u t i n one p ro cee d in g b e f o r e th e W isconsin Commission
t h a t th e d e c is io n to c o n s tr u c t a d d i t i o n a l m u n ic ip a l p la n t
f a c i l i t i e s r e s t s p r im a r il y w ith th o s e charged w ith th e
management o f th e company. Even though such
c o n s tr u c tio n may be im p ro v id e n t, i t was h e ld t h a t th e
W isconsin Commission i s n o t v e s te d w ith powers o f
management. I t i s n o t th e f u n c tio n o f th e Commission
to i n t e r f e r e w ith such ste w a rd s h ip . I t I s i t s f u n c tio n ,
how ever, to p r o te c t th e consumers o f e l e c t r i c i t y
o r o th e r p u b lic u t i l i t y s e rv ic e from th e consequences
Town o f M adison v. M adison C ity Water
D epartm ent, 41, P.U .R . (N .S .) 53 (19-41)'
31
l " 3
o f im providence o f management. ^ I t i s th e r e f o r e
beyond th e seope o f a d m in is tr a tiv e a c t i o n to r e p la c e th e
p r e r o g a tiv e s o f c o r p o r a te management w ith t h a t o f
a d m in is tr a tiv e f i a t .
C o n c lu siv e n ess o f .j u r i s d i c t i o n a l fin d in g :s. J u r i s -
d ic td m a l f in d in g s o f a d m in is tr a tiv e t r i b u n a l s r e f l e c t th e
s t a t u t e s and th e i n t e r p r e t a t i o n s o f th e c o u r ts . T here i s
no c o n c lu s iv e n e s s to th e j u r i s d i c t i o n a l s t a t u s as
d eterm in ed by a d m in is t r a tiv e a g e n c ie s . As h as been
in d ic a t e d i n th e C a l i f o r n i a r u l i n g , th e com missions te n d to
p r e f e r t h a t th e q u e s tio n o f j u r i s d i c t i o n be r e f e r r e d to
th e c o u r ts b e fo re e n t e r in g in to lo n g and ex p en siv e
i n v e s t i g a t i o n s . ^ The f i n a l a u t h o r it y i n th e d e te rm in a tio n
o f com m ission j u r i s d i c t i o n l i e s in th e j u d i c i a l p r o c e s s .
Summary and c o n c lu s io n . T here i s l i t t l e v a r i a t i o n
among th e com missions a s r e l a t e s to th e p ro ced u re
in v o lv e d i n th e e s ta b lis h m e n t o f j u r i s d i c t i o n . The
scope o f th e j u r i s d i c t i o n o f p u b lic s e r v ic e com m issions
h in g e s upon two f a c t o r s : th e p r o v is io n s o f th e s t a t u t e ,
and th e s t a t u s o f th e company i n q u e s tio n . These
13 Re V illa g e o f W a te rlo o . 41 P.TJ.R. ( N .S .) 60 (1941)
^ E a s t Bay M unicipal U t i l i t y D i s t r i c t . o p . c i t .
f a c t o r s may be tem pered by j u d i c i a l i n t e r p r e t a t i o n . T here
a r e tv^o p r e v a le n t l i n e s o f th o u g h t concerning th e j u r i s
d i c t i o n a l c o n fin e s o f com m issions. The f i r s t i s t h a t
j u r i s d i c t i o n cannot be assumed w here i t h a s n o t b een
s p e c i f i c a l l y g ra n te d by th e s t a t u t e . C o n seq u en tly ,
i f j u r i s d i c t i o n i s t o be invoked, i t must be made to
" a f f ir m a ti v e ly ap p e a r" on th e s t a t u t e books. The second
view , one which h a s been found to be th e m a jo rity view
o f th e p u b lic s e r v ic e com m issions by th e Kansas S ta te
C o rp o ra tio n Commission, h o ld s t h a t j u r i s d i c t i o n may be
im p lie d . I t i s contended t h a t s in c e a com mission
p o s s e s s e s a l l o f i t s a u t h o r it y by d e le g a tio n from th e
l e g i s l a t u r e , th ro u g h s t a t u t o r y e n u n c ia tio n , j u r i s d i c t i o n
th e n may be re a s o n a b ly drawn by i m p l i c a t i o n .15 I n
r e t r o s p e c t , th e hub o f j u r i s d i c t i o n a l fin d in g s c o n s is ts
o f th e embodying s t a t u t e w ith th e q u a lify in g r a d i a t i o n
o f l e g i s l a t i v e i n t e n t and j u d i c i a l i n t e r p r e t a t i o n . Ih e n
a p e rso n a t t a i n s th e s t a t u s o f a p u b lic u t i l i t y u n d er th e
d e f i n i t i o n s e t f o r t h i n th e s t a t u t e , he f a l l s w ith in th e
j u r i s d i c t i o n o f th e p u b lic u t i l i t y com m ission.
15 M Hugoton Gas F i e l d . 77 P.H.R. (N .S .) 157 (1949)
B e th e l I s la n d Improvement C lub. I n c o rp o ra te d v.
F ran k J . H o lla n d e r. C a lif o r n ia D e c isio n Number 42330, 77
P .U .R . (N .S .) 24 (1948)
The p r e v a i lin g p ro ced u re o f seeking th e s e ttle m e n t
o f j u r i s d i c t i o n a l d is p u te s p r i o r to e n te rin g i n t o
i n v e s t i g a t i o n s i s a sound one. The re c o u rs e to th e
c o u r ts f o r th e e s ta b lis h m e n t o f j u r i s d i c t i o n i s lik e w is e
a sound p ro c e d u re . There i s no r e a l need to d e v ia te
from th e j u d i c i a l p ro c e s s i n t h i s phase o f a d m in is tr a tiv e
r e g u l a t i o n . The in d e p en d en t d e te rm in a tio n o f j u r i s d i c t i o n a l
i s s u e s fey a c o u rt o f re c o rd s a t i s f i e s th e re q u ire m e n ts
o f e q u ity and e x p e rtn e s s . A d m in is tra tiv e com m issions
h av e been e s t a b l i s h e d , i n p a r t , b ec au se o f th e need f o r
e x p e rt d e te r m in a tio n and a d m in is tr a tio n o f a te c h n i c a l
a r e a o f th e law . I n th e q u e s tio n o f making j u r i s d i c t i o n a l
f in d in g s , how ever, th e c o u rts a r e q u ite c a p a b le o f
so d o in g . F u r th e r , i t i s p erh ap s more in k ee p in g w ith o ur
system o f governm ent to have th e c o u r ts r e t a i n th e
d e te rm in a tio n o f th e j u r i s d i c t i o n o f a d m in is t r a tiv e
a g e n c ie s .
CHAPTER IV
REQUIREMENT OP NOTICE AND HEARING
Due p ro c e s s o f law i s re q u ire d by b o th th e
F i f t h and th e F o u rte e n th Amendments t o th e U n ited S ta te s
C o n s titu t io n . The F i f t h Amendment t o th e f e d e r a l
C o n s titu tio n f o r b id s t h a t u n d er th e f u n c tio n in g o f th e
n a t io n a l system o f governm ent any p e rso n s h a l l be
M d ep riv e d o f l i f e , l i b e r t y , o r p r o p e r ty ” w ith o u t due
p ro c e s s . The F o u rte e n th Amendment h a s extended th e
same r e s t r i c t i o n upon th e s t a t e s a lth o u g h to th e d a te
o f th e a d o p tio n o f th e amendment, 1863, n e a r ly a l l th e
s t a t e s had imposed th e l i m i t a t i o n upon th em selv es i n
t h e i r r e s p e c t i v e s t a t e c o n s t i t u t i o n s .
Due p ro c e s s o f law h a s n ev e r been f u l l y and
c o n c lu s iv e ly d e fin e d ; i t h a s been s u b je c t to a c o n s ta n tly
b ro ad en in g i n t e r p r e t a t i o n . A lthough th e judges have been
urged to do so , th e y have n e v e r t r i e d to fram e a
com plete d e f i n i t i o n . They h av e , in th e words o f th e
U nited S t a t e s Supreme C o u rt, h e ld to th e co n cep t t h a t
due p ro c e s s i n i t s f u l l meaning "sh o u ld be g ra d u a lly
a s c e r ta in e d by th e p ro c e s s o f in c lu s io n and e x c lu s io n i n
- * • The C o n s titu tio n o f th e U n ite d S t a t e s . Amendment V,
S e c tio n 1.
35
th e co u rse o f d e c is io n s i n c a s e s as th e y a r i s e . I t i s
h e ld t h a t th e i n t e r e s t s o f j u s t i c e in th e f u t u r e as new
s i t u a t i o n s and problem s d ev elo p w i l l be b e s t se rv e d under
a f l e x i b l e i n t e r p r e t a t i o n o f due p ro c e s s .
I h i l e th e r e p r e v a i ls th e id e a t h a t no p e rso n may
be d e p riv e d o f l i f e , l i b e r t y o r p ro p e rty w ith o u t due
p ro c e s s o f law , th e r e i s no r i g i d re q u ire m e n t t h a t due
p ro c e s s must in v o lv e c o u r t procedure.-^ I t i s a t t h i s
p o in t t h a t a d m in is tr a tiv e p ro c e d u re e n te r s th e p i c t u r e , f o r
a d m in is tr a tiv e p ro c e e d in g s may f u l f i l l th e req u irem e n ts, o f
due p ro c e ss o f law .
A d m in is tra tiv e a g e n c ie s may se rv e i n th r e e g e n e ra l
governm ental c a p a c i t i e s : q u a s i - l e g i s l a t i v e , q u a s i
j u d i c i a l , and q u a s i- e x e c u tiv e . The p ro ced u re u t i l i z e d i n
th e co u rse o f th e a d m in is tr a tio n o f th e law depends, in
p a r t , upon th e c a p a c ity i n which th e agency i s se rv in g
a t a p a r t i c u l a r tim e . G e n e ra lly sp e ak in g , a d m in is tr a tiv e
b o d ie s must a d h e re to th e re q u ire m e n t o f due n o t i c e and a
p ro p e r h e a rin g when th e y a r e a c tin g i n a q u a s i - j u d i c i a l
c a p a c ity .^ When th e y se rv e i n a q u a s i - l e g i s l a t i v e
^ Twining v . New J e r s e y . 211 U.S. 78 (1908)
^ Weimer v . Bunburv. 30 Mich 201 (1874)
4 C e n tr a l o f G eorgia R ailw ay Comaany v . W rig h t. 207
U .S . 127, 28 Supreme C ourt 47 (1907)
c a p a c ity , how ever, t h e r e i s no such r i g i d re q u ire m e n t o f
n o tic e and h e a rin g u n le s s such i s r e q u ir e d s p e c i f i c a l l y
5
by s t a t u t e . The in h e r e n t n a tu re o f an a d m in is tr a tiv e
agency i n f e r s th e s e r v ic e o f t h a t agency in a q u a s i-
e x e c u tiv e c a p a c ity i n a l l phases o f th e r e g u la to ry
p ro c e s s . Commission o r d e r s may he q u a s i-e x e .c u tiv e i n
c h a r a c te r . So long a s th e r e i s no u n f e t t e r e d d e le g a tio n
o f powers and so long a s th e r e i s no d is c r im in a to r y
a p p l i c a t i o n o f th e s t a t u t e s , th e r e i s no p ro c e d u ra l r u l e
which m ust he adhered to by th e com m ission w h ile a c tin g
i n a q u a s i- e x e c u tiv e c a p a c ity . Most o f th e c o n tr o v e r s ie s
a r i s i n g from th e due p ro c e s s c la u se a r e th o s e which re v o lv e
around th e a c tio n s o f a d m in is tr a tiv e b o d ie s when th e y a r e
se rv in g i n a q u a s i - j u d i c i a l c a p a c ity .
The req u irem en t o f due n o tic e i s u s u a lly e s ta b li s h e d
by th e s t a t u t e which th e commissions a d m in is te r . The
F e d e ra l Power Commission^ b e fo re th e a d o p tio n o f any r u l e
o r th e commencement o f any h e a r in g , g iv e s g e n e ra l n o t i c e
in th e F e d e ra l E e g i s t e r . T here i s a p r o v is io n , how ever,
t h a t n o t i c e may be w aived in r u le making where:
. . . th e Commission, f o r good c a u se , f in d s i t
im p r a c tic a b le , u n n e c e ss a ry , o r c o n tra ry to th e
5 S ta te Board o f M ilk C o n tro l v . Newark M ilk
Company, 118 N .J . Eq. 504, 179 A. 116 (19351
37
p u b lic i n t e r e s t t o g iv e such n o t i c e , i t may p roceed
w ith th e a d o p tio n o f r u l e s w ith o u t n o t i c e by
in c o r p o r a tin g t h e r e i n a fin d in g to such e f f e c t and
a c o n c is e sta te m e n t o f th e re a so n s t h e r e f o r . . . °
A g e n e ra l s ta te m e n t o f th e p ro c e d u re o f th e F e d e ra l Power
Commission may be made to th e e f f e c t t h a t p u b lic s e s s io n s
o f th e Commission f o r ta k in g ev id en ce o r h e a rin g argum ent
and p u b lic c o n fe re n c e s and h e a rin g s b e f o re any p r e s id in g
7
o f f i c e r w i l l n o t be h e ld e x c e p t upon due n o t i c e .
The F e d e ra l Power Commission p o s s e s s e s c e r t a i n
emergency pow ers, how ever, which may be c a l l e d i n to p la y
to meet th e emergency and b e s t se rv e th e p u b lic i n t e r e s t .
During tim e o f war o r w henever th e F e d e ra l Power Commission
d eterm in es t h a t an emergency does e x i s t by v i r t u e o f a
sudden in c r e a s e in th e demand f o r u t i l i t y s e r v ic e , i t may,
upon co m p lain t o r upon i t s own m otion, r e q u i r e such
tem porary c o n n e c tio n s o f f a c i l i t i e s , g e n e r a tio n , and
tr a n s m is s io n o f e l e e t r i e energy as i t deems n e c e s s a ry t o
meet t h a t em ergency. Such a c tio n may be w ith o u t n o t i c e .
T his emergency p ro v is io n i s b ased upon th e t e n e t t h a t th e
p u b lic i n t e r e s t would f a i l t o be serv ed by d e la y .
The R ules o f P ro c e d u re s e t f o r t h by th e P u b lic
^ Code o f F e d e ra l R e g u la tio n , op. c i t . , S e c tio n 1 .1 9
^ I b i d . « S e c tio n 1 .3
® L oc. c i t .
38
S e rv ic e Commission o f th e S ta te o f New York s t a t e s t h a t
h e a rin g s on co m p lain ts and a p p l ic a tio n s w i l l he h e ld a t
such tim e s and on such n o t i c e as s h a l l he d eterm in ed i n
o
each c a s e . The g e n e ra l p r a c t i c e i s to r e q u ir e th e
a p p lic a n t to p u b lis h a n o tic e o f th e h e a r i n g , when such
h as been o rd e re d , in such new spapers and a t such tim e s as
may he d e s ig n a te d by th e Commission. At o r b e fo re th e
h e a rin g , th e a p p lic a n t m ust f i l e p ro o f o f due p u b lic a t io n
o f th e n o tic e .'* '0
The p r a c t i c e i n t h e S ta te o f C a l i f o r n i a i s , i n th e
v a s t m a jo r ity o f th e e a s e s , to g iv e n o t i c e o f th e p la c e ,
day, and h o u r o f th e h e a r in g in a fo rm a l ca se some te n
days b e f o r e t h e d a te s e t f o r th e p ro c e e d in g . A side from
t h i s ch a n n el o f n o t i c e to th e m ajor p a r t i e s to th e
p ro c e e d in g , th e C a l i f o r n i a Commission, i n i t s d i s c r e t i o n ,
may g iv e n o tic e to a l l o th e r c o r p o r a tio n s o r p erso n s who
may be a f f e c t e d by th e outcome o f th e h e a r in g . T h is may
be done by s e rv ic e upon them o f a copy o f th e p e t i t i o n o r
by p u b lic a t io n o f th e su b sta n c e o f th e p e t i t i o n i n such
11
new spaper o r new spapers as d e s ig n a te d by th e Commission.
^ R ules o f P ro c e d u re o f th e P u b lic S e rv ic e Commission
S ta te o f New York. 1943, R ule 2, P a ra g ra p h 1.
10 k o c . c i t .
H C a lif o r n i a A d m in is tra tiv e Code. A r t i c l e 10,
S e c tio n 40.
When th e C a l i f o r n i a Commission deems i t to he in
th e "best i n t e r e s t s o f th e p u b lic to s e t th e d a te o f th e
12
h e a rin g a t an e a r l i e r tim e , i t may do s o .. In tim e s o f
em ergency o r d i s a s t e r , t h i s i s th e p ro c e d u re which may
p r e v a i l . The p u b lic i n t e r e s t i s o f th e m ajor c o n c e rn . One
r e c e n t example o f th e u t i l i z a t i o n o f t h i s p ro c e d u ra l channel
was i n th e' case i n which a m otor tr u c k t r a n s p o r t a t i o n
s e r v ic e was exten d ed to a U n ited S t a t e s m i l i t a r y camp
w ith o u t n o tic e o r a p u b lic h e a r in g . I t was h e ld t h a t th e
u rgency o f such s e r v ic e would r e q u i r e im m ediate a c tio n i f
th e b e s t i n t e r e s t s o f th e p u b lic w ere to be se rv e d .
T hus, th e g e n e ra l r u l e as to th e p ro c e d u r a l re q u ire m e n t
o f n o t i c e in C a l i f o r n i a i s to th e e f f e c t th a t n o t i c e w i l l
be. g iv e n i n a l l e a s e s i n which i t i s n o t to th e b e s t
i n t e r e s t s o f th e p u b l i c to d is p e n s e w ith them. T h is g e n e ra l
s ta te m e n t m ust, ho?zever, be tem pered when th e a d m in is t r a tiv e
agency a c t s in a q u a s i - j u d i c i a l c a p a c ity .
I n th e p ro c e d u ra l a s p e c ts o f n o t i c e , t h e r e i s
l i t t l e v a r i a t i o n among th e v a rio u s s t a t e com m issions. In
th e s t a t e o f W isco n sin , th e s t a t u t e i n d i c a t e s t h a t th e
12 P u b lic U t i l i t i e s Act o f th e S ta te o f C a l i f o r n i a .
S e c tio n 60.
^ P a c i f i c F r e ig h t L in e s . D e c isio n o f th e C a lif o r n i a
P u b lic U t i l i t i e s Commission, D e c is io n 34526, 1949
W isconsin P u b lic S e rv ic e Commission may p ro c e e d , w ith o r
w ith o u t n o t i c e , to make such g e n e ra l i n v e s t i g a t i o n s as
i t may see f i t , t a t a fo rm a l p u b lic h e a rin g i s r e q u ir e d
b e fo r e th e Commission can e n t e r an o r d e r . T h e s t a t u t o r y
p r o v is io n f o r th e n o tic e s t a t e s t h a t te n days s h a l l e la p s e
from th e tim e t h a t th e p u b lic u t i l i t y o r o th e r d efen d a n t
15
i s n o t i f i e d o f th e co m p lain t b e fo re a h e a rin g can be h e l d .
In s h o r t, th e W isconsin re q u ire m e n t o f n o t i c e i s , in e f f e e t ,
th e same as th e c o rresp o n d in g p r o v is io n o f th e C a lif o r n i a
code. T h is a p p l ie s i n th e W isconsin p ro c e d u re when th e
complaint o r p e t i t i o n i s p u t f o r t h by consum ers o f th e
p u b lic u t i l i t y s e r v ic e . Whenever th e W isconsin Commission
b e lie v e s t h a t a r a t e o r ch arg e may be u n re a s o n a b le o r
u n j u s t l y d is c r im in a to r y o r t h a t any s e r v ic e i s in a d e q u a te ,
i t may non i t s own m otion summarily i n v e s t i g a t e th e same
w ith o r w ith o u t n o t i c e . A g a i n , th e d i s t i n c t i o n sh o u ld
be made t h a t f o r i n v e s t i g a t i o n s , no n o t i c e i s r e q u ir e d .
B efo re th e e n te rin g o f an o r d e r , how ever, th e r e must be
n o tic e and h e a r in g .
I*1 P eo p le v . D epartm ent o f H e a lth , an a d m in is t r a tiv e
-* -4 W isconsin S t a t u t e s , o p . c i t . , S e c tio n 1 9 6 .2 6 (1 )
15 I b i d . . S e c tio n 196.26(3)
16 I b i d . . S e c tio n 196.28
agency i n New York revoked a li c e n s e w ith o u t a h e a r in g ,
b ecau se v i o l a t i o n o f th e h e a lth law s was h e ld to be
17
d a n g e ro u s. I t was contended t h a t th e p u b lic i n t e r e s t
would n o t be serv ed i f th e v i o l a t i o n w ere to c o n tin u e
pending a h e a rin g . The same p r i n c i p l e was l a t e r r e i t e r a t e d
to th e e f f e c t th a t th e tim e elem ent in v o lv e d i n a
p r o tr a c te d h e a rin g o f t tim e s i s n o t i n a c c o rd w ith th e b e s t
i n t e r e s t s o f th e p u b lic . The p r i n c i p l e s s e t f o r th by
th e s e d e c is io n s do n o t c ro s s arms w ith p r o c e d u r a l due
p ro c e s s , b e c a u se th e d e fe n d a n t h as a c c e ss to a p ro ceed in g
o f mandamus. The q u e s tio n o f w hether o r n o t th e
a d m in is tr a tiv e agency a c te d a r b i t r a r i l y i s open to rev iew
by th e j u d i c i a l t r i b u n a l s . The p o in t o f i n t e r e s t h e re
l i e s in th e r e c o g n itio n t h a t th e d e la y in v o lv e d by a
p e rio d o f n o t i c e may be c o u n te r t o th e p u b lic i n t e r e s t .
I t h a s been h e ld t h a t in g e n e ra l r a t e making
p ro c e e d in g s , n o t i c e and a su b seq u en t h e a rin g a r e n e c e s s a ry
to p la c e th e a c tio n s o f th e a d m in is tr a tiv e t r i b u n a l w ith in
19
th e bounds o f p ro c e d u ra l due p ro c e s s .
P e o p le t . D epartm ent o f H e a lth . 189 N.Y. 187,
32 -N.E. 187, 13 L.R.A. (N .S .) 894 (1907)
" I -
P eo p le ex r e l . R i t t e r v . W a lla c e . N.Y. Sup. C t.
160 App. D iv. 787~Tl9U)
C hicago. Milwaukee and S t . P a u l Railw ay Company v .
Board o f R a ilr o a d C om m issioners.76 Montana 305,247 P . 162(1926)
Summary and c o n c lu s io n . In g e n e r a l th e r e m ust be
n o tic e and h e a rin g b e fo r e an o rd e r may be e n te re d by an
a d m in is t r a tiv e com m ission. T his i s d ependent upon th e
c a p a c ity i n which th e com mission i s s e r v in g . N o tic e and
h e a rin g a r e d e f i n i t e re q u ire m e n ts when th e agency i s
a c tin g i n a q u a s i - j u d i c i a l c a p a c ity . When th e a c tio n s o f
th e com m ission a re o f a q u a s i - l e g i s l a t i v e n a t u r e , how ever,
th e n o t i c e and h e a rin g re q u ire m e n ts do n o t n e c e s s a r i l y
h o ld u n le s s p ro v id ed f o r by s t a t u t e . I n p r a c t i c e th e
com m issions g iv e n o t i c e and p ro v id e f o r h e a rin g s i n n e a r l y
a l l c a s e s . The s t a t u t o r y p r o v is io n s u n d er which th e
a d m in is t r a tiv e b o d ie s o p e r a te e s t a b l i s h t h e p ro c e d u ra l l i n e ,
b u t th e u ltim a te t e s t l i e s in th e j u d i c i a l c o n s id e r a tio n o f
th e c a p a c ity in which th e agency i s a c t i n g .
The p r e s e n t p r a c t i c e o f g iv in g n o t i c e and h e a rin g
i n p ro c e e d in g s o f a q u a s i - j u d i c i a l n a t u r e i s a sound one.
I t may be s a id f u r t h e r t h a t th e j u d i c i a l review o f
commission d e c is io n s o r o r d e r s which h ave been made when
th e agency a c te d in a q u a s i - j u d i c i a l c a p a c ity i s a
re a s o n a b le p ro c e d u re . J u s t i c e c a l l s f o r r e c o u rs e t o th e
c o u r ts i n d e te rm in a tio n s o f a j u d i c i a l n a t u r e . S im ila r ly ,
th e s t a t u t o r y p r o v is io n s f o r n o tic e and h e a rin g a re
p o s i t i v e re q u ire m e n ts , fftien th e com m issions a c t i n a
q u a s i - l e g i s l a t i v e c a p a c ity , th e n o t i c e and h e a rin g
g e n e r a lly r e q u ir e d by th e s t a t u t e s a r e p ro p e r elem e n ts o f
i
good p ro c e d u re . When i t i s i n th e b e s t i n t e r e s t s o f th e
p u b l i c , th e le n g th o f tim e betw een n o t i c e and h e a r in g
may be p ro p e rly re d u c e d . T h is p e rm its th e com m issions to
p ro c e e d e x p e d itio u s ly on emergency m a tte r s . I n s h o r t ,
th e e x i s tin g p ro c e d u re as p r e v a i l s among th e f o u r
com m issions as r e l a t e s to n o tic e and h e a rin g i s r a t i o n a l
and sound.
CHAPTER V
SCOPE OF THE HEARING
In g e n e r a l, h e a r in g s w i l l he h e l d i n two c la s s e s
o f c a s e s . The f i r s t c l a s s in c lu d e s th o s e in s ta n c e s
when an o rd e r to s a t i s f y o r answer a c o m p la in t h as heen
made, and th e c o r p o r a tio n o r p erso n com plained o f h a s
n o t s a t i s f i e d th e c o m p la in t. The scope o f th e su b seq u en t
h e a rin g s w i l l circum vent th e is s u e s in th e c o m p la in t.
These i s s u e s i n d is p u te may concern e i t h e r s e r v ic e s o r
r a t e s . W hatever th e s u b je c t o f th e c o m p la in t, how ever,
may b e , th e scope o f th e h e a rin g w i l l depend la r g e ly
upon th e p le a d in g s o f th e p a r t i e s to th e d is p u t e . The
second c l a s s i f i c a t i o n i n which h e a rin g s w i l l be g ra n te d
concern a p p l ic a tio n s made i n a form al manner."*'
The p rim ary f a c t o r which p erm eates th e p ro c e e d in g s
o f a d m in is tr a tiv e t r i b u n a l s i s th e f in d in g o f th e tr u e
f a c t s upon which j u s t and e q u ita b le d e c is io n s may be
made. T h e re fo re , s in c e th e f a c t s a re o f such g r e a t
im p o rta n c e , i t fo llo w s t h a t th e t r i b u n a l s sh o u ld employ
such p ro c e d u re as b e s t :f e r r e t s o u t th e f a c t s . The
Forms o f fo rm al co m p lain ts and fo rm a l a p p l i c a t i o n s
a r e to be found i n th e A ppendix.
45
p ro ced u re u t i l i z e d , how ever, must n o t c o n tra v e n e th e
in v i o l a b l e r i g h t s o f any o f th e p a r t i e s to th e a c tio n .
In ac co rd an c e w ith t h i s l i n e o f th o u g h t, th e r e a re no
h a rd and f a s t r u le s to be a p p lie d in th e a r e a o f p le a d in g s .
Amendment o f p le a d in g s . I t h a s b een contended in
some q u a r te r s t h a t in com m ission h e a rin g s j u s t i c e would
b e s t be se rv e d i f th e ev id e n c e were made th e b a s is o f
shaping o r re sh a p in g t h e p le a d in g s r a t h e r th a n th e
p le a d in g s c o n t r o ll in g th e e v id e n c e . " I t i s an i n s u l t to th e
i n t e l l i g e n c e o f th e tw e n tie th c e n tu ry to su g g e st t h a t
o
p le a d in g s sh o u ld keep o u t e s s e n t i a l f a c t s . . . fl< c The
amendment o f th e p le a d in g s i s , th e r e f o r e , an im p o rta n t
w eig h t^ to be c o n sid e re d i n th e b a la n c in g o f th e s c a le s
o f j u s t i c e i n a d m in is t r a tiv e p ro c e e d in g s.
I t would be v ery u n u su a l i f i n e v e ry in s ta n c e
th e p le a d in g s i n a d m in is tr a tiv e p ro c e e d in g s were to
c o n ta in a com plete and a c c u r a te s ta te m e n t o f th e
t o t a l i s s u e s to be c o n s id e re d . I n one s t u d y . t h i s sta te m e n t
h as been a p p lie d p a r t i c u l a r l y to f e d e r a l a d m in is tr a tiv e
p ro c e d u re , b u t i t can a l s o be lin k e d w ith t h a t o f th e
3
s t a t e a g e n c ie s .
% a th a n I s a a c s , "L ogic v. Common Sense in P le a d in g ,"
M ichigan Law Review, 1 6 :5 S 9 , 191S
% a l t e r G e llh o rn , F e d e ra l A d m in is tra tiv e P ro c e e d in g s ,
(B a ltim o re : John H opkins P r e s s , 1 9 4 i) , p . 37y.
Amendment o f p le a d in g s in C a l i f o r n i a . Inasm uch as
th e t o t a l is s u e s ca n n o t always be c l e a r l y seen and s t a t e d ,
i t i s p e r m is s ib le to amend th e p le a d in g s so long as th e
i n t e r e s t s o f e i t h e r o f th e p a r t i e s to th e d is p u te a r e n o t
p r e j u d i c i a l l y a f f e c t e d . The C a l i f o r n i a P u b lic U t i l i t i e s
Commission h as r u le d to t h i s e f f e c t . - I t h as f u r t h e r
s t a t e d th e g e n e ra l r u l e t h a t p r o c e d u r a l t e c h n i c a l i t i e s
sh o u ld be avoided i n so f a r as p o s s i b l e . ^ There h a s been
a c o n tr a r y h o ld in g , how ever, by th e C a lif o r n i a Commission
which r u le d a g a in s t th e enlargem ent o f th e is s u e s r a i s e d
i n t h e o r i g i n a l complaint to in c lu d e m a tte r s which were
n o t s p e c i f i c a l l y eo v ered In t h a t com plaint."* T his l a t t e r
d e c is io n by th e C a lif o r n i a Commission i s n o t th e
p r e v a i lin g form ula c o n c ern in g amendments' to th e p le a d in g s ,
how ever. The g e n e ra l r u l e s t i l l l i e s i n ac co rd w ith t h e
e a r l i e r d e c is io n to a v o id t e c h n i c a l i t i e s . T his would
p erm it amendments which a r e n o t h arm fu l to any p a r ty to
th e p ro c e e d in g .
A nother r e le v a n t f a c t o f s i g n i f i c a n t im portance
i s t h a t i t i s always w ith in th e d i s c r e t i o n o f th e
C a lif o r n i a Commission to w aive o r suspend i t s r u le s o f
Re P a c i f ic B ailw ay Company. 22 C.R.C. 236 (1922)
^ E a s t- West R e fin in g Company v. A tch eso n . Topeka and
S a n ta Fe R ailw ay Company. 26 C.R.C. 14 "(1925)
- 47
ft
p ro c e d u re when good cau se a p p e a r s .w A gain, f u l l and
a c c u r a te in fo rm a tio n i s one o f th e f i r s t o b je c ti v e s o f an
a d m in is tr a tiv e h e a r i n g . I f th e su sp e n sio n o f th e
r u l e s o f p ro ced u re i s n e c e s s a ry f o r th e a r r i v a l a t th e
co m plete f a c t s , th e n such a c tio n i s deemed j u s t i f i a b l e .
T h is p o s it io n h a s been defended on th e grounds t h a t
p le a d in g s 'h a v e d ev e lo p ed c e r t a i n t e c h n i c a l i t i e s t h a t
h av e te n d ed from tim e to tim e to encumber and p o s s ib ly
even th w a rt th e a d m in is tr a tio n o f j u s t i c e .
Amendment o f p le a d in g s i n New Y ork. F or p r a c t i c a l
p u rp o se s i t i s n e c e s s a r y t h a t th e o r i g i n a l c o m p la in t o r
a p p l i c a t i o n be a s com plete and a c c u r a te as p o s s i b l e . The
New York P u b lic S e rv ic e Commission p e rm its th e h e a rin g
ex am in er, in h i s d i s c r e t i o n , to a llo w any c o m p la in t,
p e t i t i o n , o r o th e r p a p e r to be supplem ented, amended o r
c o r r e c te d , so lo n g a s such amendment does n o t unduly
b ro ad en th e is s u e s to be c o n s id e re d . I t i s a ls o
im p o rta n t t h a t such amendment o r c o r r e c t io n sh o u ld not
su g g e st any undue o b liq u i ty o r i n t e r p r e t a t i o n o f th e
£
Re A tch e so n . Topeka and S an ta Fe R ailw ay Company.
27 C.R.C. 4 6 4 T T 92ST
^ N athan I s a a c s , op. n i t . , p . 590
^ R ules o f P ro c ed u re o f th e P u b lic S e r v ic e Commission
o f th e S ta te o f New York. R ule I , P a ra g ra p h 3*
4-8
is s u e s in c lu d e d i n th e p ro c e e d in g s . Thus i t i s t h a t
t h e r e a r e no fo rm al r u l e s which m ust be s t r i c t l y fo llo w e d
in th e S t a t e o f New York concern in g amendments to
p le a d in g s . C o n sequently th e scope o f th e h e a rin g , w h ile
i t may be in one p a r t i c u l a r a re a o f r e g u l a t i o n , may be
changed as to s p e c i f i c i s s u e s to. be c o n s id e re d . I t i s
w ith in th e d i s c r e t i o n o f th e h e a rin g exam iner to p e rm it
amendments to th e p le a d in g s . Such w i l l be th e ea se i f i t
i s f e l t t h a t th e b e s t i n t e r e s t s o f th e p u b lic w i l l be
se rv e d by th e amendment.
Amendment o f p le a d in g s in W isconsi n . T here i s no
mechanism i n th e p ro ced u re o f th e W isconsin Commission
f o r th e jo in in g o f is s u e s c o rre sp o n d in g to th e p le a d in g s
o
i n p ro c e e d in g s b e fo re a j u d i c i a l c o u r t. The scope o f
th e h e a rin g s b ro u g h t b e f o r e th e W isconsin Commission may
be s a id to be h e ld more r i g i d l y w ith in th e bounds o f th e
o r i g i n a l c o m p la in t o r a p p l i c a t i o n th a n i s th e ca se in
New York o r C a l i f o r n i a . I n one ca se b e f o re th e W isconsin
Commission, f o r exam ple, no a c tio n was ta k e n to reduce th e
l e v e l o f r a t e s a t exchanges where e a rn in g s were shown to
be i n ex c ess o f a re a s o n a b le r e t u r n , b e c a u se th e
^ See W allace M endelson, "The P u b lic S e rv ic e
Commission o f W isconsin: A Study in A d m in is tra tiv e P ro c e d u re "
W isconsin Law Review. 4-0*509, 194-0
49
p ro c e e d in g was b ased on th e p e t i t i o n o f a te le p h o n e
10
eompany t o in c r e a s e r a t e s . The ra n g e o f th e h e a rin g
in t h i s c a se was f o r th e c o n s id e r a tio n o f a p o s s i b le r a t e
i n c r e a s e , and th e s u b je c t o f e x c e ss e a rn in g s by a r e a s
was beyond th e l a t i t u d e o f th e p a r t i c u l a r h e a r in g . I t i s
p o s s i b l e , how ever, t h a t i n such a c a se a s t h i s , t h e r e may
be a su b seq u en t p ro c e e d in g i n s t i t u t e d by a consumer o f th e
p u b lic u t i l i t y s e r v ic e o r by th e W isconsin Commission
i t s e l f i f such a c tio n was deemed to be i n th e p u b lic
i n t e r e s t . At t h i s p o i n t , n e v e r t h e l e s s , i t i s s i g n i f i c a n t
to o b se rv e t h a t t h e r e i s a somewhat more r i g i d te n d en cy
to a d h e re to th e p o in ts a t is s u e as s t a t e d i n th e o r i g i n a l
c o m p la in t o r a p p l i c a t i o n i n W isconsin th a n e x i s t s i n
Hew York o r C a l i f o r n i a .
Amendment o f p le a d in g s b e f o r e th e F e d e ra l Power
Commission. I t i s th e g e n e ra l p r i n c i p l e o f th e F e d e r a l
Power Commission to a v o id m e tic u lo u s a p p l ic a tio n o f
r ig o r o u s and ex a ct r u l e s o f p ro c e d u re . The F e d e ra l Power
Commission, how ever, r e q u ir e s t h a t a l l form al c o m p la in ts
be so drawn as to f u l l y and c o m p letely a d v ise th e p a r t i e s ,
10 He Commonwealth T elephone Company. 4-1 P .U .R . (N .S .)
94 (1941
Code o f F e d e r a l R e g u la tio n s , T i t l e 18, C h ap ter One
P a r t 1 , S e c tio n 1 .6 .
50
th e d e fe n d a n t, and th e Commission o f th e f a c t s c o n s t i t u t i n g
th e grounds o f th e c o m p l a i n t .^ F u r th e r , th e r e must be
s t a t e d th e p r o v is io n s o f th e s t a t u t e s , r u l e s , and o rd e r s
r e l i e d upon, in v o lv in g th e a u t h o r i t y o f th e Commission,
12
th e i n j u r y s u f f e r e d , and th e r e l i e f so u g h t. Such
d e f i n i t e n e s s i s a l s o sought in th e c o n s id e r a tio n o f
a p p l i c a t i o n s .
Any m o d if ic a tio n o r supplem ent to a p le a d in g i s
deemed to be an amendment to th e p l e a d i n g .1-^ I n p ro v id in g
f o r amendments to p le a d in g s , th e F e d e r a l Power Commission
a d h e re s to th e g e n e r a l concept t h a t a d m in is tr a tiv e p ro
ce d u re should be f l e x i b l e . T his f l e x i b i l i t y makes p o s s ib le
th e f i t t i n g o f th e p le a d in g to th e ev id en ce r a t h e r th a n
th e conform ing o f th e evidence to th e p le a d in g .
W hile th e F e d e r a l Power Commission p ro v id e s f o r
amendments to th e p le a d in g s , th e r e a r e c e r t a i n j u s t
l i m i t a t i o n s to t h e i r u s e . No amendment may be f i l e d
w ith in f i v e days o f th e commencement o f o r d u rin g a h e a rin g
u n le s s such i s d i r e c t e d o r p e rm itte d by th e C o m m issio n .^
T h is r u l e i s s u b je c t to th e p ro v is o t h a t a l l p a r t i e s to th e
^ L o c . c i t .
• ^ F e d e ra l Power Commission. R u les o f P r a c t i c e and
P ro c e d u re . P a r t 1 , R ule l l ( a ) . (lB CFR 1 .1 1 ) .
1^Loc. c i t .
d is p u t e must have an o p p o rtu n ity to he h e a rd on th e
15
g r a n tin g o r p e r m ittin g o f an amendment. Upon i t s own
m o tio n o r upon m o tio n "prom ptly f i l e d " hy any p a r t i c i p a n t ,
th e F e d e ra l Power Commission may f o r good cau se d e c lin e
to p e rm it, o r may s t r i k e i n whole o r in p a r t , any
amendment.-1 -0
The Commission1s r u le s f u r t h e r p ro v id e t h a t when,
a t a h e a r in g , i s s u e s n o t r a is e d hy th e p le a d in g s a r e
in tro d u c e d hy e x p re s s o r im p lie d c o n sen t o f th e p a r t i e s ,
such is s u e s s h a l l be t r e a t e d in a l l r e s p e c ts as i f th e y
1 7
had been r a is e d i n th e o r i g i n a l p le a d in g s . I f
ev id e n c e upon such new is s u e s i s o b je c te d to on th e
ground t h a t i t i s n o t w ith in th e is s u e s r a i s e d hy th e
p le a d in g s , th e exam iner may a llo w th e p le a d in g s to he
amended and such ev id en ce to he r e c e iv e d , when i t ap p ears
t h a t th e m e r its o f th e p ro cee d in g w i l l he se rv e d th e re b y
w ith o u t p r e ju d ic in g th e p u b lic i n t e r e s t o r th e r i g h t s
o f a n y p a r t i c i p a n t . A d m in is tra tiv e d i s c r e t i o n e n te r s
th e p i c t u r e , and f a c t u a l elem en ts become i n t e r l a c e d w ith
^ h o c , c i t .
^ h o c , c i t .
17 I b i d . . R ule 11(b)
T O
h o c, c i t .
52
v a lu e judgm ents.
From th e p ro c e d u ra l v ie w p o in t, th e amendment
o f p le a d in g s which may m odify th e o r i g i n a l co m p lain t o r
a p p l ic a tio n i s th e m ajor c o n s id e r a tio n i n th e scope o f
th e h e a r in g . The C a lif o r n i a p ro c e d u re , a g a in , p e rm its such
amendments so long as th e i n t e r e s t s o f e i t h e r o f th e
p a r t i e s to th e d is p u te a r e n o t p r e j u d i c i a l l y a f f e c t e d .
Summary and c o n c lu s io n . The scope o f th e h e a rin g
i n i t s p ro c e d u r a l a s p e c ts i s b a s ic ly s e t by th e s ta te d
is s u e s i n th e o r i g i n a l p e t i t i o n o r c o m p la in t. I t i s
re c o g n iz e d , how ever, t h a t i n a d m in is tr a tiv e p ro c e e d in g s
i t i s d i f f i c u l t t o f o r s e e a l l th e Is s u e s to be c o n s id e re d .
The fo u r com m issions under s tu d y , t h e r e f o r e , p e rm it th e
p le a d in g s t o be amended. The g e n e ra l p r i n c i p l e which
a p p lie s to t h i s p ro c e d u ra l eh an n el i s t h a t m a tte r s , which
do n o t a f f e c t th e m e rits o f th e ca se In a manner h arm fu l
to one d i s p u t a n t , may be s u b je c t to c o r r e c t io n o r
amendment a t any tim e d u rin g th e p ro c e e d in g s .
I t may be n o te d t h a t th e r e i s more o f a tendency
to ad h ere to th e is s u e s s e t f o r t h i n th e o r i g i n a l p e t i t i o n
i n W isconsin th a n i n th e com m issions o f C a l i f o r n i a and
Hew Xork. P le a d in g s may be amended i n W isconsin and
co n seq u en tly th e p ro c e d u ra l scope may be b ro ad en e d . The
F e d e ra l Power Commission p e rm its amendments to p le a d in g s ,
53
and i s , p e rh a p s , a l i t t l e more r i g i d th a n th e C a lif o r n i a
Commission i n i t s p ro c e d u re . Thus, i t may he seen t h a t th e
scope o f th e h e a r in g , a s viewed from a p ro c e d u ra l v ie w p o in t,
may he somewhat more e l a s t i c i n C a l i f o r n i a th a n in th e o th e r
th r e e com m issions.
I f th e amendment o f p le a d in g s b ro a d e n s th e scope o f
th e h e a r i n g , how ever, and i f such e x p a n sio n i s deemed to
he beyond th e p u rp o ses o f th e p a r t i c u l a r p ro c e e d in g , i t may
be q u ash ed . T his may be done by th e a d m in is t r a tiv e
commission upon i t s own m otion o r upon th e o b je c tio n o f one
o f th e p a r t i e s to th e d is p u t e . The key q u e s tio n , how ever,
about which th e m a tte r o f p le a d in g amendments re v o lv e s i s
w hether o r n o t th e amendment o f th e p le a d in g s e n la rg e s o r
c o n tr a c ts th e p ro c e d u ra l scope o f th e h e a r in g in a manner
to be p r e j u d i c i a l to one o f th e p a r t i e s .
The p ro ced u re o f th e C a lif o r n i a Commission as
compared w ith t h a t o f th e o th e r a g e n c ie s i s good. I t
re c o g n iz e s t h a t th e r e may be c e r t a i n in s t a n c e s i n which
i t would be to th e ad v a n tag e o f a l l th e p a r t i e s as w e ll
a s th e consuming p u b lic to p erm it amendments to p le a d in g s .
T h is sh o u ld n o t be c o n s tru e d to i n d i c a t e t h a t th e r e i s
a d e f i n i t e la c k in g i n th e p ro ced u re o f th e o th e r
com m issions, how ever. I n t h i s phase o f r e g u la to ry
p ro c e d u re , th e fo u r a g e n c ie s have s u f f i c i e n t l y f l e x i b l e
p ro c e d u re so as to o b ta in th e f u l l and a c c u r a te f a c t
The p ro c e d u re a ls o rem a in s w ith in th e bounds o f
p ro c e d tira l due p r o c e s s .
CHAPTER V I
PREHEARING CONFERENCES
In order to provide opportunity either for the
complete settlement of a proceeding or for the“settlement
of any of the issues involved in a dispute, administrative
agencies often afford informal prehearing conferences.
These conferences are held before an examiner or a member
of the commission, and are fostered for the submission and
consideration of facts, arguments, and offers of settle
ment. Further, there may be certain adjustments which may
lead to the simplification of the issues in dispute. Pre-
hearing conferences serve to expedite hearings, but the
major concern of the administrative bodies is to follow a
course of action which best promotes the public interest.
Therefore, if the nature of the proceedings does not serve,
in the opinion of the commission, the best interests of
the public, the conferences will not be utilized. This
possibility generally arises only in cases of great emer
gency when time is of the essence.
The Federal Power Commission suggests that there
may be considered four major subjects which will tend to
facilitate the performance of its duties and expedite the
subsequent hearings.*- First, there is a meeting of the
minds on the issues to he examined in the hearings. The
central line of action herein revolved around the pleadings
The goal of the conferences in this respect lies in the
full and complete understanding of the issues of the dis
pute. Fiora the full understanding of the first proposed
issues often comes the simplification of the issues. A
second point of consideration in the prehearing conferences
hinges upon the exchange and acceptance of service of ex
hibits proposed to he offered in evidence. In the informal
environment which pervades the conferences, the exchange
of exhibits tends to speed up the rate of the proceeding.
Thirdly, there is the possibility of the parties to the dis
pute limiting the number of expert witnesses. An 1 1 endless
parade of witnesses1 * would only serve to lengthen the hear
ing, and the incidence of congruous and overlapping testi
mony would be high. Limitation of the number of expert
witnesses need not work to the disadvantage of any of the
parties to the proceeding. It would tend to accelerate
the conduct of the hearing. The fourth possible factor
which is suggested by the Federal Power Commission lies in
the feasibility of obtaining admissions to, or stipulations
*FPC, Rules of Practice and Procedure, part 1,
Rule 18(b), (18 C.F.R. 1.18).
57
of, facta not remaining in dispute. A closely related factor
is the acceptance or concurrence on the authenticity of doc
uments which the parties plan to introduce in the hearing as
evidence.
Prehearing conferences may he directed hy the Fed
eral Power Commission with or without motion. The rules of
procedure of the agency state that:
i
Upon motion hy a party or staff counsel timely filed,
a presiding officer designated to preside at the hearing
or such other officer as may he designated may direct
the attorneys for the parties to such proceedings and
staff counsel to appear for a prehearing conference...
Due notice of the time and place of such conference will
he given to all parties to the proceeding and staff
counsel.2
There is further provision that unaccepted proposals of
adjustment or settlement as well as suggested procedure to
he,followed and proposed stipulations not agreed to shall
he privileged. Such factors are not admissible in evidence
in subsequent proceedings against any person claiming the
privilege.''
In the printed rules of procedure of the New York
Public Service Gosmfesion or the corresponding commission
of Wisconsin, there are no provisions for prehearing con
ferences. In practice, however, there are suggestions for
2 Ibid., Part 1, Rule 18(e)
3 Ibid., Part 1, Rule 18(e)
5 8
informal negotiations and possible settlement of disputes
wherever such is possible prior to formal hearings* The
California Commission, by its rules of procedure provides
that the parties to any, proceeding before it may, by
stipulation in writing, file with the Commission or enter in
the record certain agreements as to facts involved in the
controversy. Such stipulations as to facts may be imtro-
4
duced as evidence at the formal hearing. The provision
further states that: “It Is desirable that the facts be
thus agreed upon whenever practicable."® Thus, while by the
written rules of procedure, the three state commissions do
not specifically provide for prehearing" conferences, they do
encourage certain informal negotiations which' tend to ex
pedite the subsequent hearings . Stipulations as to facts
constitute one great step forward In facilitating the per
formance of the administrative duties. It has been suggested
that, in rate-making procedures, the opportunity be provided
for the parties to disputes to exchange written data in
advance of the formal proceedings. The suggestion is to
then permit the agency to adjudicate upon all available
material. A tentative report would be made in which would
4 California Adm in is t rat i ve Code, op. cit., Article
10, Section 41.
5
toe* cit•
59
be accorniced what material was resorted to that was not
included in the original written statements of the parties.**
The idea of exchanging data, in advance of a hearing has
merit, and is practiced to a limited extent. The tentative
report, however, may present a problem revolving around the
formulation of an interim decision prior to the full invest
igation of all evidence.
Summary and conclusions . It may be said that the
Federal Power Commission has gone far beyond the three state
commissions in encouraging the settlement of disputes or at
least in expediting the formal proceedings through utilizing
the tool of a prehearing conference. In practice the Cal
ifornia Public Utilities Commission encourages informal
negotiations, but the central sphere of action lies in the
handling of informal complaints. While important, informal
complaints do not often go beyond proposals of settlement.
When informal complaints are subsequently channeled as
formal complaints, there is no specific procedure for the
consideration of such questions as the limitation of the
number of expert witnesses, the simplification of the issues,
or the acceptance and exchange of service of exhibits. Thus*
informal negotiations arising out of informal complaints do
6 lay A. Brown, ”Public Serviee Commission procedure -
A Problem and a Suggestion,” Pennsylvania Law Review, 87:139,
1938. ‘ '
do not have the seope of activities which tends to expedite
the hearings as do prehearing conferences. Again, in prac
tice, there is some employment of prehearing techniques,
and indeed there are some conferences. The need exists,
however, for a specific procedural channel through which
formal proceedings may he expedited and commission perfor
mance facilitated. In this respect the procedure of the
Californh Commission could well he improved.
THE HEARING
Most of the important and controversial issues
involved in public utility regulation are resolved through,
formal proceedings, the nucleus of which are hearings be
fore administrative tribunals. These hearings for the pur
pose of taking evidence are held at such a time and place
as is convenient to the parties to the dispute. Such a
policy must be in accord with the public interest and within
the limitations of time.
When a complaint or application Is to be channeled
through formal proceedings under the California public
Utilities Commission, it is first assigned to a Commissioner,
and then possible reassigned to a tril examiner. In prac
tice, the examiner confers with the legal advisors and
respective departments within the Commission to determine
future dates on which the hearings could be most conven
iently docketed. The examiner then consults the Commission
er who may wish to preside over or be present at the hearing.
The proposed date of the hearing is then referred to the
complainants and defendants for their approval or alternate
suggestion. Again, the date and place of the hearing is
fixed so as to conform to the convenience of the parties.
This general rule is tempered with that which is deemed to
62
be in the best interests of the public.
Consolidation of proceedings. At the outset of
a formal proceeding, when there are other similar matters
pending, the commissions may consolidate the proceedings for
the hearing of the issues of the action. For example, in
one of the disputes recently before the California Commisslm,
it was felt by that agency that consolidation of the pro
ceedings would, in view of the substantial similarity and
overlapping of many of the rights sought, enable the Com
mission to acquire a more complete view of the over-all
conditions and circumstances surrounding the point at issue.
It was felt that this would thereby make possible a sound
determination as to public convenience and necessity.^- The
Federal Power Commission, through its rules of procedure,
provides that proceedings Involving a common question of law
or fact be consolidated for hearing on any or all the matrteis
at issue.® Consolidation of proceedings is permitted with
the idea in mind that such an action saves both time and
expense for the parties to the action as well as to the Com
mission. After hearings are under way, however, consoli
dation may be impractical and undesirable. The Federal
1
Re Savage Transportation Company, Decision Number
43003 of EKe OallFornla Public utilities Commission, June
14, 1949.
2 '
Federal Power Commission, Rules of Practice and
Procedure, op. cit.. Rule 20(b), (16 C.F.R. 1.20).
Power Commission, for example, has stated that consoli
dation of proceedings may not, in particular instances, he
in the public interest, because the consequent delay could
tend to impede the completion of proceedings already in
progress. The federal agency may take the initiative in
such matters, and may issue such orders as it deems neces
sary concerning the conduct of consolidated proceedings.
Orders may be made as they may tend to ’ ’avoid unnecessary
cost or delay and as may expedite their disposition in the
public interest.”4 Thus, the Federal Power Commission has
specific provisions in its rules of procedure for the
disposition of and the channeling of consolidated proceed
ings . While the corresponding state agencies do not have
such specific provisions, in practice they recognize the
proper position occupied by consolidation as a procedural
technique. The California Commission accepts by practice
* 5
the principle of consolidation of proceedings.
Oral testimony and cross-examination of witnesses.
Under the rules of the California Commission, the complain
ant in a hearing must establish the facts upon which he
® The City of Toledo, Ohio v. Hope natural Oas Com
pany, Docket Hujboer G-176., Jul^r" '30, 1940, 2'F.p.cf.R. W i 194D\
4 FPC, Rules of Practice and Procedure, op. cit.,
Rule 20(b77~(l3~57Ff .^ 172757” --------- ---
g
Re Savage Transportation Company, op. cit.
64
bases his complaint, unless the defendant either admits
the same or fails to answer the complaint.8 Similarly, the
defendant must give evidence of the facts as alleged in the
answer, unless admitted by the complainant, and must fully
7
disclose its defense at the hearing. Witnesses who appear
before the California Commission are examined orally and
Q
under oath unless the facts are stipulated. In the event
that documentary evidence is offered, the Commission may,
in its discretion, accept certified copies of such documents
as may be r e l e v a n t . Aside from the acceptance of certified
copies of documents, it is worthy of note that the agency
may accept such portions of the documents as may be relevant
to a particular hearing.
It has been suggested that in some administrative
proceedings, such as those of a quasi-legislative nature,
there be a greater use of written evidence without the con-
9
ventional processes of testimony and cross-examination.
It Is urged that such a step would expedite hearings while
affording ample opportunity for interested parties to express
their views on Issues before the commissions. It has been
g
California Administrative Code, op. cit., Article
9, Section 43.
7
Loc. c i t .
8 Log, c i t .
^ Hay Brown, ©£. cit., p. 140.
65
further stated that the formalized hearing, as one method
of assuring justice, cannot properly assert a monopoly over
the ' ’ procedural virtues,0 and thus debar efforts to build new
and perhaps more direct roads to justice.*0
The prevailing procedure as utilized by public service
commissions is to accept oral evidence and permit cross-
examination of witnesses. Again, the California Commission
holds that witnesses who appear at a hearing will be exam-
1 1
ined orally unless the facts are stipulated. This practice
is not necessary to meet the requirements of procedural due
process in all instances, however. The use of oral testi
mony and cross-examination under administrative procedure
depends largely upon the capacity in which the commissions
are acting. Unless such is provided by statute, there need
be no opportunity presented for oral testimony or cross-
examination when the agency is acting in a quasi-legislative
capacity. In fact, no hearing is required when the commission
functions in this capacity. An example of this possibility
may be seen in licensing proceedings. When activities are
within state regulation under police powers, licenses may be
revolked without notice or hearing.*2 When the commission
*° Walter Gellhom, Federal Administrative Proceedings
(Baltimore: John Hopkins Press', 1941), pp 73-74.
^ California Admlnistrative Code, op. cit., Article 9,
12 Peoria Braumeister Company v Yellowley, 123 Fed.(2d)
637, 638, ■e.tfTA’ ..TtY TOUT. --------
is serving in a quasi-judicial capacity, however, oral
testimony and the opportunity to cross-examine witnesses is
generally held to he a requirement of procedural due process.
The California Commission adheres to the rule of
a.ffording opportunity to present oral testimony and to ex
amine the witnesses whose testimony is to he considered in
the final formulation of the decision. The rules of pro
cedure as followed in California state that interested
parties shall enter their appearances at the beginning of
a hearing. They may appear at the hearing and participate
in person or they may participate hy representative.1^ The
parties, however, must have a proper stake in the resulting
decision, or there must be a definite relevancy, the protest
of a carrier which is without the authority to render a
service similar to that proposed in a commission hearing may
he disregarded.14 Had the carrier in this ease possessed
the authority to render a similar service, it is probable
that the testimony would have been admitted.
The Federal Power Commission has followed similar
principles concerning the appearances of interested parties.
A typical illustration may be presented in which the
^ California Administrative Code, op. cit., Rule 42.
14
Plxley (Furniture Fast Freight), 43 C.R.C. 246 (1941).
67
participation of a representative in a proceeding as an
Intervenor and a party to the hearing was not held to toe
1 5
necessary. “ The rules of procedure of the Federal Power
Commission state that a person may file a petition to in
tervene is that person claims a right under a statute or has
a definite interest in the proceeding. An interest, under
the rales of procedure, may toe:
An interest whieh may toe directly affected and which
is not adequately represented toy existing parties and as
to which petitioners may be bound by the Commission1 s
action in the proceeding (the following may have such an
interest: consumers served toy the applicant, defendant,
or respondent; and competitors of the applicant, defend
ant , or respondent).16
In the ease of General Gas Pipe Line Corporation above,
while permission to intervene was denied, the representative
was permitted to participate in the hearing to the extent of
introducing relevant and material evidence. Permission was
also granted to make oral argument and file brief s. ^ Thus,
a person may take part in a hearing in respect to a particu
lar question as to which they have a special interest
18
without formal Intervention. The intervenor is a formal
15
General Gas Pipe Line Corporation, Docket Humber
G-125, September 57~T939,'2F.P.C.R. 677 (1939).
16
FPC, Rules of Practice and Procedure, op. cit.,
Part 1, R u l e ~ 8 ( F f T S T r7 T75)~:-------- ---
1? General Gas Pipe Line Corporation, op. cit.
18
See Joseph P. Chamberlain, Hoel T. Dowling, and
Paul R. Hays, The Judicial Function in Federal Administrative
Agencies (Hew York: The Commonwealth Fund, 1942}', p. SI.
party to the proceeding to the extent of introducing relevant
and material evidence.
The Wisconsin Commission has placed a limitation on
intervention to the effect that the intervenor must either
support or oppose the allegations made hy the original par
ties* This was felt to he necessary in order to:
t
deter persons who sought to appear not in support of
a legitimate interest, though they might have one, hut
to make political capital of the publicity which attends
Commission hearings, especially in the smaller towns.
It is therefore necessary that the participants in a
hearing have an interest in the final determination made hy
the agency in order to present oral testimony* Under its
rules of procedure, the Public Service Commission of Hew York
affords ’ ’reasonable” opportunity at hearings for parties to
the proceeding to present evidence and examine the witness
es.20 The examination of the witnesses is done orally. Any
person having an interest in the matters under consideration
at a particular hearing may request the examiner to direct
that his appearance as a party to the proceeding he noted on
the record. This may he done at any time prior to or during
the hearing. If it appears to the Commission that the
Mendels on, op. cit., p. 512.
^ew York Public Service Commission, Rules of
Procedure, op. cl¥. j Rule 2, Paragraph 5.
69 *
granting of the request will aid in arriving at a proper and
21
just decision, such request will be granted.
Oral argument. Following tbe close of the oral test
imony in the body of the hearing, the parties are given an
opportunity to indicate upon the record whether or not they
wish request oral argument before the examiner. These re
quests, if made, are generally granted as a matter of
course. In actual practice, however, there is little use
made of this procedural channel.
Oral argument is about the last avenue which a party
has to influence the commission before it enters into delib
eration on the final order. This argumentation is actually
a party*s own analysis of the dispute and a presentation of
his conclusions. An early decision has held that a hearing
in Its very essence demands that he who is entitled to it,
should have the right to support his allegations by oral
22
arguments however brief. Again, request may be made for
oral argument, and it is the practice of the four commissions
to grant such requests.
As an alternative to oral argument, the parties may
file briefs. While this procedure Is more often followed
21 Ibid., Paragraph 4.
• Londoner v. Benver, 210 U.S. 373, 28 Sup. Ct. 708,
52 L. Ed. 1T0S -TO08).------
than oral argumentation, it too is hut rarely used. Briefs
do, however, serve an important function in that it offers
one avenue through which the parties may sum up their con
clusions and present their analysis of the case to the
commission and other parties.
* > ,
Cooperative procedure of the Federal Power Commission.
The Federal Power Commission, under both the Federal Power
Act and the H&tural Gas Act, is authorized to institute cer
tain cooperative procedures between itself and the various
state commissions. There are three procedures which may be
followed in this cooperation. First, any matter arising in
the administration of the Acts which affects one or more of
the States may be referred to a board to be composed of a
member or members from the State or States affected.
Secondly, there may be conferences with state commissions
concerning such subjects as rates, costs, accounts, charges,
practices, classifications, and regulations of public util
ities or natural gas companies subject to the jurisdiction of
the state commissions and the Federal Power Commission.24
The third avenue authorized consists of the holding of joint
hearings with state commissions in regard to any matter with
23 ppo, Rules of Practice and Procedure, Part 1, Rule
37 (a)i, (TS~C.F.RTT377T- : -----
24 Ibid., Rule 37 (a)ii.
4
71
respect to which the Federal Power Commission is authorized
25
b y statute to act.
The procedure in setting up the machinery or organ
ization of a joint hearing may best be presented in actual
case from. In one recent proceeding, for example, an order
was issued for the fixing of a place and date for joint or
concurrent hearing of a dispute. In this instance there
was the provision for cooperative procedure among the
Federal Power Commission, the Public Utility Commissioner of
the State of Oregon, and the Department of Public Utilities
of the State of Washington. In the consideration of
Northwestem Electric Company and the Pacific power and
Light Company, the three agencies were to sit or designate
the representative or representatives to sit at the con-
26
current hearing. Further, they were to designate the
representative who was to act in the capacity of the pre
siding officer at the hearing for the Oregon Commissioner and
the Washington Department. The representative designated by
the Federal Power Commission was to be the presiding officer
to announce the rulings with respect to which there was no
disagreement. Such rulings were to be considered concurrent
25 Ibid., Rule 37 (a)iii.
2<* Northwestern Electrio Company and pacific Power
and Light Company, Docket's Numbers' IT-599S7 IT-6006, August
277 T9TC7 F'P.p7C.R. 738, 739 (1946).
rulings. However, if the presiding officer for the Oregon
Commissioner of the Washington Department did not concur in
any ruling, they were free to announce a divergent ruling.
The record of the concurrent hearing, in the order
establishing the joint hearing, was stated to he the record
of the Federal Power Commission, the Public Utility Com
missioner of Oregon, and the Department of Public Utilities
of the State of Washington. If, however, divergent rulings
are made, the rulings ”shall be so recorded as to separate
and distinguidi clearly the record” of the three agencies,27
Further, there wa3 to be recorded separately the evidence
admitted in each record, in accordance with the rulings of
the presiding off-Icers. The, order of the Federal power Com
mission providing for the cooperative procedure In this
particular proceeding stated:
If the ruling of one presiding officer has the effect
of admitting any voluminous exhibit or testimony which
is excluded by the ruling of another presiding officer,
the taking of such evidence will, whenever possible, be
deferred until after the" completion of all proceedings
which can be conducted under concurrent rulings. a
In all respects concerning which there is no divergence of
ruling, the hearings are conducted in accordance with the
Buies of Practice and Procedure prescribed by the Federal
73
Power Commission. This is subject to the express ‘ under
standing that the other commissions shall have control of
their own record and make their own rulings as to the
admissibility of evidence, and as to other matters affecting
the proceedings. Each agency makes its own separate, final
order or decision. Before any . commission enters any order
or decision, however, there shall be afforded opportunity
for a conference between the Federal Power Commission and the
cooperating commissions. In the present case, the order
provided for concurrent proceedings in the conduct of the
hearing.
The Federal Power Commission recognizes that there
are two types of proceedings which have been called ”joint
hearings.1 1 Under the Federal Power Act and the natural Gas
Act, joint hearings cover any hearing in ?hlch members of
the Federal Power Commission and members of one or more
state agency sit together in a proceeding pending before one
such commission, whether or not a proceeding embracing
O Q
similar issues be pending before any other commission.8 7 In
this capacity the members of the commissions may sit merely
for information purposes or in an advisory capacity. The
state commissioners, when sitting with the Federal Power
29
Federal Power Act, Section 209. Natural Gas Act,
Section 17. See also FPC, Rules of Practice and procedure,
Part 1, Rule 37(e)(1).
74
Commission, do not develop a record for their respective
agencies. Farther, they may or may not make recommendations ,
30
to the federal agency. The second type of joint hearing
is often called the 1 1 concurrent hearing.” It i3 this type of
joint hearing which was described in the case above. The
basic idea or line of distinction is that inconcurrent hear
ings the commissions sit together and jointly make a record
upon an issue over which all of the participating commissions
have jurisdiction and responsibility for action.
The rales of procedure as exemplified in the matter
of Northwestern Electric Company and Pacific Power and Light
Company are set forth by the Federal Power Commission.It
is stated that cooperation between two or more commissions
shall preclude either from taking the position of an advo
cate or a litigant. If a commission wishes to take such a
position, which it may as a matter of right, it should be
so done through Rule 8 providing for intervention rather
* 2 0
than through cooperation.proceedings. °
Of the three channels of cooperation among state
commissions and the Federal Power Commission, the most often
utilized is that of joint hearings. The Federal power
30
FPC, Rules of Practice and Procedure, op. clt.,
Rule 37(e)(2).
31 Ibid., Rule 37(e)(4).
32 Ibid., Rule 37(e)(7), and Rule 37(f).
75
Commission tends to favor joint hearings over the creation
of a joint hoard.®® Although there is some variance as to
procedure, as well as secondary purpose, the joint hearing
offers an important channel for the alignment of the pro
cedure of the different commissions.
The procedure operating within joint hearings is, as
indicated, essentially the same among the various commissions.
The major point is the opportunity for the presentation of
testimony and the cross-examination of witnesses . Cooper
ation between the Federal Power Commission and the several
state commissions constitutes a program which promotes not
only fuller understanding of problems but also better
procedure.
The procedure involved in affording the opportunity
to put forth evidence and cross-examine witnesses at a
hearing conducted under the Wisconsin Public Service Com
mission is, in practice, essentially the same as that of
the commissions of California and New York. Following
consolidation of proceedings hinging upon common questions
of fact and law, if such be the circumstances, the hearing
turns to the admission of evidence. This evidence, docu
mentary or oral testimony, is examined as it is presented
53 See Western Natural Gas. Company, Docket Number
G-168, 2 F.P.C.R. 802 (1940). Independent Natural Gas
Company, Docket Number G-178, 2 F.P.C.R. 803 {1^40).
76
by the parties to tbe proceeding.
It is the manner In which administrative procedure
deviates from the corresponding procedure of the judicial
courts that brings forth much of the criticism of adminis
trative commissions. It is the admission of evidence which
constitutes the center of the procedural question. It has
been said that substantial evidence, reliability, and
probity as defined by administrative use are but vague
concepts and misunderstood. The administrator, it has been
contended, gives na lay interpretation to the terms and
reliable means only that he considers it worthy of reliance,
probative means only persuasive to him and substantial means
having substance in his opinion.34 This view indicates
that administrative procedure in its handling of evidence
is not as yet a settled question.
Another factor to be considered In the admission of
evidence is the direct role of the administrative agency.
The Wisconsin Commission, in considering one phase of its
investigatory and administrative activities, held that the
participation by the Commission's engineers and by the Com
mission's counsel’ in the preparation and Introduction of
Wilburn Mayock, "Administrative Agencies and the
Constitution,M An address delivered before the Kinth Judicial
Circuit Conference, Los Angeles, California, June 28, 1949,
Vital Speeches of the Day, 15:685, September 1, 1949.
77
evidence does not constitute objectionable grounds. This
arouse in a proceeding to determine the purchase price to be
paid by a municipality for the acquisition of property held
by an electric company. Such participation Is not objection*
able as being a participation of the Commission on behalf of
35
one of the parties in interest. The Wisconsin Commission
heM that the statute contemplates such use of the commis
sion's staff. The Commission said:
To contend, therefore, that we cannot put in evidence
in the proceeding before us, the faets revealed by our
own investigation is tantamount to a contention that we
have no right to consider the results of such invest
igation.36
The statement thus made by the Wisconsin Commission is the
representative view held by the other three commissions. If
the results of the commissions' investigations were to be
beyond their consideration in decision making, the funda
mental power of the regulatory process would itself be
questioned. By the inherent nature of the administrative
commission, such cannot be the case.
disposition of proceedings or matters which deal with
similar issues, the practice is to consolidate such pro
ceedings. This saves both time and expense for all
Summary and conclusions. In order to facilitate the
P.U.R. (N.S.J 2V5 (194TT
36 Loc. cit.
35
Edgerton v. Wisconsin Power and Light Company, 37
78
concerned, and need not work to the disadvantage of any of
the parties to the dispute.
In the general conduct of the hearing itself, the four
commissions usually permit oral testimony and cross-examin
ations, The actual requirements of procedural due process of
law do not in all cases call for such oral testimony or
cross-examination. As in the principle governing the
requirements of notice and hearing, the question hinges upon
the capacity in which the agency is acting. If the com
mission is performing quasi-judicial functions, oral test
imony and cross-examination of witnesses is generally
required. If, however, the agency Is acting in a quasi
legislative capacity, there Is no such rigid requirement.
The policy and practice of the four commissions of this study
is to permit oral testimony and cross-examination of
witnesses wherever such is practicable even in quasi-
legislatlve proceedings. The California Commission adheres
to this policy, and its procedure is efficient, effective,
and equitable.
The cooperative procedure of the Federal Power Com
mission is peculiar to the federal agency, but the procedure
of the state commissions is involved In that each commission
may rtake its own ruling regarding the admissibility of
evidence to its own record. For the most part, however, the
four agencies follow the same procedure In such rulings. The
79
The cooperative procedure is important because many of the
proceedings before the Federal Power Commission have direct
influences on the other agencies. The procedure in the
joint proceedings, both in practice and in stated rules, is
reasonable and practical in terms of both justice and
effectiveness.
CHAPTER V I I I
RHUS OF EVIDENCE'
With, the increasing complexity of the economic life
of a nation, there has been an emergence of many new and
difficult problems in the field of public utility regulation.
Changes in social concepts as well as technological develop
ments call forth new approaches to these problems confronting
both public utility companies and the administrative agencies
who regulate their activities. Changes in social concepts
and the parallel advent of new avenues of attacking problems
often call for new interpretation of the law. With a chang
ing environment, mental as well as physical, the law itself
cannot remain static and maintain Its position of importance
in society.
Similarly, the techniques which are acceptable in the
administration of the law must keep pace with the new inter
pretations and principles. The evolution of administrative
law and the accompanying development of administrative
procedure constitute an acknowledgment of the need for
responsive flexibility in the law. Flexible procedure in
the conduct of hearings as manifested in the admission of
evidence before commissions is an attending indication that
this need is being met. Again, the emergence of new prob
lems and the ramifications of those problems call for the
investigation of new techniques and procedures so as to
indeed promote just and equitable application of the law.
, Administrative agencies were horn of the need for
expert investigation and application of the law to certain
technical areas of economic and governmental life. With the
rise of these administrative bodies there was an accompanying
development of administrative law which rejected the form
alized and rigid rules .of evidence that prevailed in the
judicial tribunals• The recognition of the need for more
flexible rules of evidence was implied in an early case when
Judge Cooley stated:
There is nothing ... that necessarily implies that
due process of law must be judicial process. Much of
the process by means of which the government is carried
on and the order of society maintained is purely
execut ive or adminis t rat ive.
This statement may well serve as the keynote of administrative
procedure as employed today in most of the administrative com
missions on both the state and federal levels.
One study concerning the rules of evidence before
administrative tribunals concluded that commission hearings
should not be conducted with strict application of the rules
of evidence for a number of reasons.2 The first of these
1 Weimer v. Bunbury, 30 Michigan 201 (1874).
2 Harold M. Stephens, Admini s t rat ive Tribunals and the
Rules of Evidence (Cambridge: Harvard University Press , ' 1935),
p i .
8 2
reasons has already been indicated to the effect that under
the more flexible procedure there will result a fuller and
more accurate understanding of the facts. Another factor
which calls for flexibility in administrative procedure
centers around the fact that the commissions determine
questions which are largely social and economic, not merely
legal, and therefore require the utilization of procedure
t t unknown to the courts.'1^ While these statements are qual
itative in character aid broad in scope, they direct
attention to the factors about which revolve many of the
procedural questions entertained by the state and federal
administrative agencies.
In the evolution ©f administrative law and the rules
of procedure by which it is projected, the rules of evidence
have come to occupy an important position In the development
of an informal system of adjudication. Informalism, however,
is not an * ,either-or, i proposition. The administrative pro
cedure has been based upon judicial procedure, and through
an eductive process has evolved to a compromise between
rigidity and informality. It has been largely through the
rules of evidence as adopted and practiced by administrative
agencies that the present system of flexible procedure has
developed.
3
Loo. eit.
Rules ef evidence may fee properly relaxed fey an ad
ministrative tribunal since such investigations more nearly
correspond, both in nature and purpose, to hearings held by
4
legislative committees than they do to a lawsuit* This
refers to the actions of administrative agencies when they
are acting in a legislative capacity. The relaxation of
the rules of evidence in particular as well as the rules
of procedure in general is necessary in order to obtain pub
lic sentiment on such questions as necessity of service,
extensions and abandonments. The general rule concerning
the admission of evidence when the administrative body is
acting in a legislative capacity is to the effect that there
shall be no formalism which tends to stand as a barrier to
the full finding of the facts and public sentiment.
Admittance of hearsay as evidence. The hearsay rule
which applies in the law of evidence is relaxed and makes
admissible such information as would be otherwise unavailable
to a commission. One administrative commission accepted in
evidence the testimony of the president of a bus company to
the effect that he had traveled over a route served by
another such carrier, talked to a great number of people and
listened to their complaints as to the need of additional
4 Re Charles . M. Thomson, Trustee of Property
and Horth WesiernRaTlway' Company, 41 P.tJTR. IN.S.
84
service. This testimony was deemed competent in an action
by the existing carrier to vacate an order authorizing the
bus company to furnish competing local serviGe on its through
5
buses. In this instance, the commission was acting in a
quasi-judicial capacity insofar as it concerned licensing
proceedings, and it was acting in a quasi-legislative capac
ity insofar as it concerned the necessity and convenience
of the service. In short, It may be stated that adminis
trative agencies utilize both inference and presumption in
arriving at their decisions, but such decisions must be basei
upon substantial evidence and not mere conjecture.
Again, this formerly rigid rule has been modified
sufficiently so as to make admissible before the Public
Service Commission of ?Jiscon3in exhibits purporting to show
revenues and expenses or other computations derived there-
0
from.. The significance of this admissibility is particularJy
relevant in view of the inherent nature of an investigation
by the Commission as an administrative and regulatory
7
agency. While hearsay may be admitted as evidence before a
commission, It must be supported by such other evidence as
________________ J
5
Chicago and Calumet District Transit Company v. Public
Service Commission, 41 P.U.R. SCI, 37 N.E. (2d) 271 il942yi
A —
Re Charles M. Thomson, Ibid., p. 173.
7 1^?Id., p. 173.
Is~applicable to the hearing. ’ ’ Mere uncorroborated he re 3 ay
or rumor does not constitute substantial evidence.”® Sub
stantial evidence, which is required in proceedings in which
the commission is acting in a quasi-judicial capacity, has
been explained to mean such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.®
Although the questions of what is a reasonable mind and what
is adequate evidence are open to academic discourse, the
general principle remains that while hearsay may be accepted
as evidence, it is only partial or fragmentary evidence. It
must be accompanied by such other evidence as will meet the
requirements of ”substantial evidence.” Flexibility occupies
the center of the procedural stage with the footlights of
informalism Illuminating each act of the administrative
drama. Flexibility is, therefore, only one aspect of the
administrative process, and even though it is highly desir
able, its assurance ’ ’does not go so far as to justify orders
without a basis in evidence having rational probative.
* 10
force.
Before the Federal Power Commission all relevant and
O
Consolidated Edison Company v. national Labor Rela
tions Board, 305 United" Stages 1W, 229, Supreme Court
§, 06,’ , “21‘ 7 (1938).
86
material evidence is admissible, but such evidence as is
unduly repetitious or cumulative is excluded from admission
as evidence. The presiding officer or examiner rules on
the admissibility of all evidence; he controls the reception
of evidence so as to confine it to the is sties involved in
the proceeding and set forth in the pleadings insofar as
11
possible. Appeals from the rulings of the presiding of-
ficer may be made, and cross-examination of opposing witnesses
may be conducted by any party to the proceeding.
The Administrative Procedure Act under which the
Federal Power Commission guides its procedure sets forth that
every party to a proceeding shall have the right to present
his case or defense by oral or written documentary evidence,
1 %
and submit rebuttal evidence during the hearing. ^ Each
party has the further right to conduct such cross-examination
of witnesses as may be required for a full and true disclos-
14
ure of the facts. In this particular phase of the question
of admission of evidence, the four administrative agencies
agree. According to the rules of procedure of the Federal
of Federal Regulations, op. cit., Section 1.26.
12 Ibid.» Section 02.39.
13 Adminis t rat ive P rocedure Aet, Document Rumber 248,
79th Congress, Second Session,’' l9"46, Section 7c.
Loc. cit.
87
Power Commission, the parties to the dispute and the staff
counsel shall have the right to submit evidence and cross-
15
examine the witnesses. Therefore, in view of this right,
it has been held that a federally licensed power company
cannot complaint that it did not receive a fair hearing
merely because it did not ehoose to submit evidence, offer
a plan of disposition, or argue the cause at a hearing when
every opportunity was given that company to submit evidence,
cross-examine the witnesses, and to present argument on the
16
subject of the hearing.
The technical rules of evidence need not necessarily
be applied in any investigation or proceeding conducted by
the Federal Power Commission. No informality in any com
mission proceeding nor in the manner of taking testimony
can be held to invalidate any order of ruling put forth by
1*7
the Federal Power Commission. This statutory provision
is directly in accord with the concept in administrative
law that due process of law is not necessarily judicial
process. Public sentiment should be known in many of the
disputes which come before the commissions, and judicial
15 Code of Federal Regulations, op. cit., Section 1.20g.
16
He Northwestern Electric Company, 36 P.N.R. (N.S.)
202 (1940)“ i
17
Federal Power Act, Part III, Section 308(b).
8 3
process by its rigid rules of evidence does not permit the
public will to become knovm in the form of records of evi
dence. The Attorney General*s Committee on Administrative
Procedure has 3tated:
(Public) participation ... in the rule-making pro
cess'* is essential in order to permit administrative
agencies to inform themselves and to afford safeguards
to private interests. It may be accomplished by oral
or written communication and consultation; by specially
summoned conferences; by advisory committees; or by
hearings.18
This public participation requires that the procedure employed
by the administrative bodies be of such flexibility as to
permit the disclosure of the sentiment of the consuming
public.
The California Public Utility Commission, by the act
which it administers, need not, in the conduct of its hear
ings, be governed by the technical rules of evidence. Ho
informality in any hearing, investigation or proceeding or in
the manner of taking testimony shall invalidate any order or
19
decision of the Commission. Thus, the general rules of
procedure a3 employed by the four commissions agree that the
informality of proceedings will not be a eause of invalida
tion of decisions.
18
Final Report, Attorney General's Committee on Ad
ministrative Procedure, Senate Document Humber 8, 77th Con
gress, First Session, 1941, pp. 101-102.
^ Utilities Act of the State of California,
Section 53.
89
The Federal Power Commission has the power, upon a
proper showing, and when a hearing has reached a stage where
it may fee determined that a reduction of rates should fee
$
made, to make such order even though the hearing fee not
on
completed. It has feeen contended that the Federal power
Commission was without power and jurisdiction to enter an
interim order." It was stated:
Hot seriously would it fee argued that a court of
equity given jurisdiction of a subject and granted the
express power to make a final order to fix rates was
powerless, on a proper showing, to make an interim
order limiting profits. We must, and do, hold that up
on a proper showing, and when the hearing has reached
a stage where the Commission may determine that a re
duction (or an increase) of rates should fee made, it
may (and should) make such order even though the hear
ing fee not completed.2* 1 -
The procedure involved is flexible in character and- may fee
held in some quarters to fee too informal, but, again, infor
mality may not of itself fee a cause of invalidation. A
hearing, then, does not cease to fee fair merely because the
rules of evidence and of procedure applicable in judicial
22
proceedings have not feeen strictly followed. This rule
is generally applicable in all administrative agencies,
20
- Hatural Gas Pipeline Company v. Federal Power Com
mission, 35-T':uTr ."T¥. s IM1T7 120 nwre^Trgirr.
21 Loo. cit.
United States ex rel. Bilokumsky v. Tod, 263 U.S.
149 (1923)1
whether it he in an alien hearing or in a utility rate case.
While the rules of procedure as employed in California,
Wisconsin, or Hew York permit the admission of hearsay and
operate under a flexible range, nothing can be treated as
evidence unless it has been introduced as such. Commissions
are not bound to acquire information concerning all matters
involved in the proceedings before them wholly and entirely
from the evidence of witnesses. They may take into consid
eration the results of their general investigations and all
matters which affect the controversy and concerning which
23
they must determine the facts. The results of these in
vestigations and matters of general notice must be introduced
as evidence in the particular proceeding. Papers, for exam
ple, which ’ ’ are in the files of a commission are not always
evidence in a ease; nothing can be treated as evidence which
is not introduced as such.”2^ It is a well-settled concept
that any decision of a quasi-judicial body, such as the
California Public Utility Commission, made after a hearing,
must be supported by evidence formally introduced as such
upon the hearing in order that the final decision of that
23 1
State v. State Public Service Commission, 95
Washington 3^6, 385 1X^1^
United States v. Abilene and Southern Railway
Company, 265 United States 274 (1924).
91
agency may be sustained.2® In one hearing before the Wis
consin Commission, evidence in other pending proceedings and
material contained in the commission’s files and records
were incorporated by reference as part of the record in so
far as it related to the instant case.2® In this particular
proceeding, the use of the commission’s files, and records
became a proper part of the record because of its intro
duction by reference as evidence.
A phase of administrative procedure closely allied
to the introduction and admission of evidence is the use of
judicial notice. In judicial procedure the courts may take
official notice of general facts or conditions which are so
common and accepted that they cannot logically be questioned.
This concept of judicial or official notice has been accepted
by administrative commissions. The California Commission,
for example, has taken official notice of certain measures
introduced at a session of the state legislature when such
proposed legislation is relevant to the proceeding.27 The
Public Service Commission of Hew York has extended this
25
Re Western Warehouse and Transfer Company, 45
CalifornlaHJailroad Gommls sion 87, 94 (1943).
2® Town of Madison v. Madison City Water Department,
41 P.U.R. TI7s.7“53 (1941).
27 East Side County Water District v. The San Jose
Water Works , 45 C .R. 6'. 64o, 845 (1945).
92
principle when, in the consideration of a plan for the sub
stitution of busses for street cars in a particular city,
it took judicial notice of the fact that complete bus sub
stitution had been authorized in similar cities tinder similar
circumstances to the satisfaction of both the municipalities
28
and the companies.
Judicial or official notice in administrative proceed
ings is a procedural technique utilized for the expediting
of the settlement of disputes. It i3 a tool, while not
provided for specifically In the rules of procedure of the
commissions under study, :i employed as an aid in the de
termination of certain types of facts.
Thus it is that the changing social and economic
concepts call for new interpretations of the law and the
development of new procedures in administration to prevent
the superannuation of the basic laws The statement has
been made by the Florida Supreme Court that each generation
should possess the right to construe and interpret its
Constitution in the light of the daily needs In a complex
society rather than in the light of now obsolete conditions
and circumstances of the past. It was considered unjust and
pestiferous to nchain modem society to the views and
28
Re International Railway Company, 39 P.TJ.R. (U.S.)
392 (1941).
93
opinions of eminent jurists of former generations not
acquainted with our present-day problems.1,29 Again, these
new problems eall for new techniques and procedures, and one
main principle of administrative procedure has been recently
reiterated by the Supreme Court to the effect that admin
istrative agencies are not bound by rigid rules of evidence.®
Summary and conclusions. With the emergence of new
and complex problems in the economy of the nation, there has
come forth a need for new methods of coping with them. The
administrative agency was bom of this need. Within the
development of the administrative process, there has been an
accompanying evolvement of new procedures with which the
agency could deal with the problems. One such new approach
lay in the-eommission rules on the admission of evidence.
We have seen that flexibility is the keynote of the
evidentiary rules of public service commissions. The
California Commission, for example, has not adhered to the
technical rules of evidence. Further, informalism in pro
ceedings is not a cause for the invalidation of commission
decisions. Finding the facts underlying the issues of the
dispute is of major importance and flexibility of
29
Florida Power Corporation v. Pinellas Utility Board,
et al., 75 P.I/.R. U.S.) £52 (1948).
30
Federal Trade Commission v. Cement Institute, 333
U.S. 683 (1948).
administrative procedure facilitates the discovery of such
facts.
The California Commission admits hearsay as evidence.
The observations and causal interpretations of those obser
vations may be accepted. Hearsay is only partial evidence,
however, and must be supported by other evidence of proba
tive force. Further, the means of obtaining information,
while they need not adhere to the rigid rules of evidence,
must not contravene the procedural rights of the individual.
Since commission orders must be supported by sub
stantial evidence, there is not an overemphasis on heresay
as evidence. The California procedure does provide for the
advantages of the formalized hearing in its recognition of
what constitutes substantial evidence. It also has the
advantages of the flexible procedure in that it may obtain
some information which would not otherwise be available to
the record. Thus, the present procedure in the admittance
of evidence is both effective and Just. The policy of the
California Commission indicates that, concerning the tech
nical rules of evidence, there is no "elther-or” position.
The extremes of formalism and informalism appear to have
been properly balanced in the Commission's rules of procedure.
This is true not only in the stated rules of procedure but
also in the practice of the Commission..
CHAPTER IX
ENFORCEMENT OF COMMISSION DECISIONS
Most of the administrative determinations are consid
ered as final, and are not channeled through rehearing
proceedings or appealed to the courts. Where such commission
orders are not respected and put into effect, however, there
must he certain provisions for enforcement of such orders.
Administrative regulation is only as strong as the provisions
for the enforcement of the decisions of the agency.
The general statutory provisions for the enforcement
of a commission's decisions usually state that, after a
hearing, the district court may enforce orders of the com
mission by injunction or other proper process. The district
or circuit courts have general jurisdiction to enforce ad
ministrative determinations, where there is legal provision
for forfeiture, penalties, or criminal punishment for dis
obedience; or where the statutes make no specific provision
for the enforcement of the administrative acts. Most of
the cease and desist orders issued by the district courts
are handled procedurally through the use of the transeript-
See Frederick F. Blachly and Oatman, Miriam E., t t A
United States Court of Appeals for Administration,” The
Annals of the American Academy of Political and Soci'al” Science,
miT787~Miy~l3I2;-------- ------------
of-the-record. The commission files a certified copy of the
record of the proceeding along with a petition for the en
forcement of the order, The petition states the testimony
taken, the findings made "by the commission, the report of
the trial examiner, and the final order entered by the
agency.
The Hew York statute provides that whenever the com
mission is of the opinion that a utility company or person
under it3 jurisdiction is:
failing or omitting or about to fail or omit to do
anything required of it by law or by order of the com
mission, or is doing anything or about to do anything
or permitting anything or about to permit anything to be
done, contrary to or in violation of law or of any order
of the commission, it shall direct counsel to the com
mission to commence an action or proceeding in the
supreme court of the state of Hew York in the name of
the commission for the purpose of having such violations
or threatened violations stopped and prevented either by
mandamus or injunction.^
The appeal in Hew York is made to the State Supreme Count.
In Hew York, however, the Supreme Court is not comparable to
the Supreme Courts of other states. From the Hew York
Supreme Court appeals may be made to the Court of Appeals.
The statute further provides that it is the court's
duty to specify a time, within twenty days after service,
within which the utility company must answer the petition.
In case of default in aswer or after answer, the court
2
Public Service Law of the State of Hew York, op.
eit. , Article" 'S,~s'ac¥io'nHS7.----------------- : ------
immediately inquires into the fact3 and circumstances in such
manner as the court directs without other or formal pleadings,
and without respect to Many technical requirement•”* 5 The
final judgment in any such action or procedding either dis
misses the action or directs that a writ of mandamus or an
injunction he issued.
The Wisconsin statutes provide for the enforcement of
the decisions of the Public Service Commission In a similar
manner. Xf the Commission finds that a public utility has
or is about to violate any general or special order of the
commission, the agency may bring an action in the Circuit
Court of Dane county in its own name to enjoin such viola
tion or disregard of the order.4 Where it is deemed in the
public interest to preserve the status quo, the court may
issue a temporary injunction pending a hearing upon the
merits of the ease. Prom any such order or judgment of the
circuit court an appeal may be taken to the state Supreme
5
Gourt. Thus, the Wisconsin procedure provides for the
commencement of enforcement proceedings in the district
court, and the Hew York Commission commences such action in
the supreme court of the state.
3
XjOG . cit •
4 , »
Wisconsin Statutes, op. cit., Chapter 196.49(5).
5
Loc. cit.
The Federal Power Act which indicates the lines of
procedure for the enforcement of the Federal Power Commis
sion's decisions or orders states that, whenever it appears
to that Commission that any person is engaged or ahout to
he engaged in any acts or practices which constitute a vio
lation of the Act, the Commission may in its discretion
bring an action in the proper District Court of the United
States, the Supreme Court of the District of Columbia, or
the United States Courts of any Territory or other area
subject to the jurisdiction of the United States to:
enjoin such acts or practices and to enforce com
pliance with this Act or any rule, regulation, or order
thereunder, and upon a proper showing a permanent or
temporary injunction or decree or restraining order shall
be granted without bond. The Commission may transmit such
evidence as may be available concerning such acts or
practices to the Attorney General, who, in his discretion,
may institute the necessary criminal proceedings under
this Act.6
Further, upon the application of the Federal Power Commission,
the proper district court or other corresponding United
States court has jurisdiction to issue writs of mandamus
commanding any person to comply with the provisions of the
Federal Power Act or any rule or order of the Federal Power
7
Commission.
6 Federal Power Act, op. cit., Part III, Section 314(a).
7 Ibid., Section 314(b).
99
In turning to the provisions of the California Public
Utilities Act, it may be seen that the commission as a whole
or each commissioner individually has the power to issue
writs of summons, subpoenas, warrants of attachment, warrants
of commitment, and all necessary process in proceedings for
contempt in the like manner and to the same extent as courts
of record.® The process issued by the California Commission
extends to all parts of the state and may be served by any
person authorized to serve process of courts of record, or
9
by any person so authorized by the California Commission.
This element of partial coincidence of process service with
the courts of record tends to facilitate the enforcement
proceedings. The major point of interest In this particular
provision, however, lies in the use of the procedural tech
nique of contempt proceedings. Another section of the
California statute makes more specific and detailed outline
of the contempt procedure. The statute states:
Every public utility, corporation or person which
shall fail to observe, obey or comply with any order,
decision, rule, regulation, direction, demand or
requirement, or any part or portion thereof, of the
commission or any commissioner shall be in'contempt
of the commission, and shall be punishable by the
commission for contempt in the same manner and to
8 Public Utilities Act of the State of California,
Section 54.
9 Loc. cit.
1 0 0
the same extent as contempt is planished by courts of
record.
It is further asserted in the statute that the remedy pre
scribed in this particular section is not a tear to or will
not affect any other remedy prescribed in the statute. It
Is, further, cumulative and in addition to such other
remedy or remedies.11 Thus it is that the California Com
mission may use the contempt power in the enforcement of
its determinations. The statute, in the provision for
sueh power, reiterates the principle and grant of such
poiver as expressed in the Constitution' of the State of
California.12
The use of the contempt power by public service com
missions follows two general channels. One is to grant to
the commission, by constitutional or statutory provisions,
the direct use of the contempt power as it is used by courts
of record. This process may be used not only to compel
the appearance of witnesses and the production of evidence,
10 Public Utilities ~Act of the State cf California, op.
cit., Section 6l.
^ k°c» cit.
ip
Constitution of the State of .California, Article XII,
Section 22,
1 0 1
but also to compel compliance with, any order which the
commission may lawfully make. The other channel lies in
the employment of contempt proceedings through the courts
of record by petition of the administrative agency. There
are, at present, four states which have avoided the question
of the constitutional objection to the delegation of the
contempt power by express constitutional grant. The four
states which grant this power to the administrative agencies
charged with the regulation of public utilities in the
respective states are California, Oklahoma, Louisiana, and
Virginia.14
The use of the contempt power is an important pro
cedural tool by which administrative decisions may be more
rapidly enforced. The California Commission has so used
the contempt power for noncompliance with its orders
issued in the various phases of its regulatory functions}
this includes not only orders dealing with rates and se
curities, but also with the requirements of orders
13 See Gilbert G. Lentz, Enforcement of the Orders of
Public Service Commissions (Urbana: tJniversiW of Illinois
Press, 1940), p. 69
14 Constitution of the State of California, op. cit.;
The Const1tution of the State of OklaEoma, Article IX, Sec
tion 19“ ; ConstiiutTon of the State of Virginia, Article XII,
Section 156( c")Constitution of the~~5tate of! Louisiana,
Article VI, Section 4,
1 0 2
1 * 5
relating to service. In California it has heen held that
a commission order directing that an operation cease and
desist is similar to an injunction which is commonly used hy
courts of record.16 A violation of an order constitutes a
contempt of the Commission.
Summary and conclusions. Thus it may he seen that of
the four administrative agencies under study, three of them
resort to the courts for the primary steps in the enforcement
of their orders or decisions. The Hew York Public Service
Commission seeks enforcement from the supreme court of that
state. The Wisconsin Public Service Commission follows the
general and prevailing plan of resorting to the district
courts. Again, it should be noted that the Hew York Supreme
Court is not comparable to the courts of the same title in
other states. The Court of Appeals holds this position.
The Federal Power Commission turns to the corresponding
United States district court which has jurisdiction over the
issue in dispute. The procedure in California, however, gen
erally turns to the use of the commission*s contempt power
which is expressly granted by the state constitution. In
cases of appeal from the orders of the California Commission,
15
- Re Henry (West Sacramento Water Company), 46 G.R.G.
469, 477 (TSiSTT*-------------------------
16 Re Kagarlae, 42 C.R.G. 675 (1940).
1 0 3
the Issue goes directly to the California Supreme Court, hut
the significant consideration at this point is that the
California Commission holds a procedural tool which constit
utes a procedural short-cut in the enforcement of its
determinations. This facilitates and expedites the
performance of the Commission^ duties in most of the
phases of utility regulation. The California Commission
need not resort to the courts for the attendance of wit
nesses , for the issuance of injunctions or writs of
mandamus, or for the enforcement of its specific or general
orders. This power constitutes one point in which the
administrative procedure and procedural tools of the
California Commission are superior to such in the other three
commissions in this study. While it may be put forward that
the ultimate authority In the enforcement of administrative
determinations rests In the courts of record, the use of the
contempt power or the possible avenue of such use often is
sufficient. While the judicial tribunals through appeal and
review are, again, the final magistracy, such action Is
supplementary to the contempt power, for the California
statute states that contempt proceedings are cumulative*
CHAPTER X
FINALITY OF COMMISSION DECISIONS
A. Rehearings
- Following a determination made by the administrative
agency, there may be put forward applications for the re
consideration of matters through rehearings. The Califomia
Public Utility Commission may grant and hold such rehearings
on matters If it deems there is sufficient reason therefor.
In California any party to a formal proceeding or any party
pecuniarily Interested in the public utility company
affected by Commission determinations may apply for a
1
rehearing. The application must set forth specifically the
ground on which the party considers that the Commission erred.
The Public Utilities Act provides that:
No cause of action arising out of any order or
decision of the commission shall accrue in any court to
any corporation or person unless such corporation or
person shall have made, before the effective date of
said order of decision, application to the commission
for a rehearing.... No corporation or person shall in
any court urge or rely on any ground not so set forth
in said application.2
Thus there is provision within the statute for the public
California Administrative Code, op. cit.,Article
10, Section 45.
2 Public Utilities Act of the State of California,
Section 61TI
utility company to exhaust the administrative or local
remedies before appealing to the courts.
The California statute actually outlines the rehear
ing procedure in a more detailed manner than do the rules of
procedure. In the consideration of an application for a
rehearing, if such is made to the Commission within ten days
of the effective date of the order, the applicant may con
sider the request as being denied if, further, the rehearing
3
is not granted within twenty days. Applications made ten
days or more prior to the effective date of the order in
question, however, shall be either granted or denied before
4
the effective date. There is provision for the commission
to extend the effective date of the order Mfor .the period
c
of the pendency--of the application. If the application
for a rehearing is granted without such suspension of the
order, the commission immediately proceeds to the hearing
the matter with all dispatch, and will determine within
twenty days of the date of final submission the matters in
question. If the determination is not made within this
period of twenty days, the parties to the proceeding may:
106
6
consider* the order affirmed.
An application for rehearing before the California
Commission cannot be held as an excuse by any corporation
or person for failure to comply with and obey any order or
decision, except in such cases and upon such terms as the
commission may direct^he time element of the receipt of
the application for the rehearing is of significance due
to its importance in the procedural handling and in the
final action by the administrative agency. It has been held,
for example, that an application for rehearing is not made
to the commission until it actually reaches the commission,
and a mere mailing of the application is insufficient within
the meaning of the provisions requiring the filing of such
application before the effective date of the agency’s
order.8
After rehearings are granted, they are conducted in
accordance with the rules of procedure employed In the
course of a primary hearing. If, after the rehearing and a
consideration of all the facts, including those arising since
the making of the original order or decision, the California
6
Loc. cit.
7
Loc. ci t.
8 State ex rel. Alton Railway Company v. Public Ser
vice CommissionrTffe’ S.W. ( &d} 149,4l P.U.R. (H.'sV)' 535 (1941) .
107
Commission is of the ©pinion that the original order or
any part thereof is in any respect unjust or unwarranted,
it may abrogate, change or modify such order or decision.9
The California statute further provides that:
An order or decision made after such rehearing abro
gating, changing or modifying the original order or
decision shall have the same force and effect as an
original order or decision, but shall not affect any
right or the enforcement of any right arising from
or by virtue of the original order or decision unless
so ordered by the commission.10
The Hew York Public Service Commission, in providing
for rehearings, puts forth that applications for rehearings
shall be in writing and shall state specifically the grounds
upon which the application is based. The application must
set forth separately each error of law and fact alleged to
have been made by the Commission in its determination and
the facts and arguments in support of the allegations.*^
In Hew York, the petition for a rehearing must be filed in
the office of the Commission in Albany within thirty days
after the service of the final order. The Commission, at
any time and on its own motion may grant a rehearing or
9 Public Utilities Act of the State of California,
Section 66.
3-® Loc. cit.
11 Rules of Procedure of the Public Service Commission,
op. cit., Rule 27 Paragraph TT
reopen a p r o c e e d i n g . When any decision is sought to he
reversed, rescended, or modified on account of facts or
circumstances resulting from the compliance with the order,
determination, or decision which are claimed to justify a
reconsideration of the proceeding, the matters relied upon
hy the party making the application must he set forth
fully.Thus, in essence, the procedure involved in the
accession of a rehearing in California and Hew York are the
same. The California provisions put forward a more detailed
formula for the dates of filing applications, and this
indicates a more definite path of treatment. The Hew York
provision which states that the applications must he filed
within thirty days from the date of service is, in effect
however, congruent to the California provision in that the
effective date of the commission order falls, unless
specifically stated otherwise, upon the thirtieth day fol
lowing the issuance of such order.
The Hew York procedure holds that a copy of the
petition for the rehearing must he served upon all parties
to the proceeding hy the person applying for such rehear-
14
ing. An affidavit of service must accompany the
application. If any of the parties to the proceeding wish
to oppose the granting of a rehearing, such opposition
must he made in a statement to the commission within five
days of the receipt of the petition; the statement must set
forth the reasons for the belief that a rehearing should not
he granted. Herein is one point of deviance between the
procedure of California and New York. In the rules of pro
cedure of the Californt Commission and likewise in the
statute, there is no provision for the notification of the
other parties to the proceeding of the application for re
hearing. In practice, however, the other parties are given
notice of the petition, but according to the letter of the
procedure as set forth by the rules, such notification is
not formally required by the California Commission.
The New York statute provides that an order made
after rehearing, which abrogates or changes the original
order shall have the same force and effect as an original
order but it will not affect any right or the enforcement of
any right arising by virtue of the original order.
Within twenty days after determination has been made
by the Wisconsin Commission, any part to the proceeding may
apply to the agency for a rehearing in respect to any matters
^ Public Service Law of the State of New York, op. cit. ,
Article 1,Vse'ction 22.
1 1 0
determined in tlie proceedings.16 If, in the judgment of the
commission, there is sufficient reason put forth for the
rehearing, such will he granted. Running parallel to the
provisions in California and lew York, the Wisconsin statute
states that the application for rehearing must set forth the
specific grounds on which the applicant considers the
17
decision to he unlawful or unreasonable. The Wisconsin
statute further follows the California statute in that no
cause of action arising out of any ruling of the commission
shall accrue in any court to any person unless such person
shall have made, before the effective date of the order,
application to the commission for a rehearing. The lew York
statute or fules of procedure do not have this provision.
One reason for the omission may he that it is considered
sufficient to hold to the old legal principle that local
remedies must he exhausted before seeking relief in higher
tribunals.
An application for rehearing of a proceeding may he
filed with the Federal Power Commission within thirty days
after the issuance of a final order or decision. The
application must set forth specifically the alleged errors
16 Wisconsin Statutes Relating to the Public Service
Commission of Wisconsin and the ReguIa'tTon of public ' jftTlTFies,
op. cit'.V Chapter 196,405‘ (” 2‘)-{3).
I f Loc. cit.
I l l
in the order. The application mist also he served' hy the
petitioner upon all parties to the proceeding or their
18
attorneys of record. The Federal Power Commission and the
Wisconsin Public Service Commission hoth recognize that if an
order issued hy the respective commission is found, after
rehearing, to he in any respect unlawful or unreasonable,
such order or decision may he reversed, suspended, modified
or otherwise changed.^*® The Wisconsin statute asserts that
an order made after rehearing shall have the same force and
effect as an original decision; there is no specific pro
vision in the rules of the Federal Power Commission to this
effect hut such is implied as the intent of emboyding
90
provisions. v
As to substance, a proceeding will not he reopened
for hearings unless the respective administrative agencies
deem that such would he in the public interest. The
California Commission will not reopen a proceeding for
additional evidence where the party has failed to disclose,
with even reasonable "particularity” the character and scope
of such evidence, the extent to which it would modify the
18 Rules of Practice and Procedure, op. cit., Rule
54 ( a~-b ) , (T^"C. F-.R. lT34( .
19 Wisconsin Statutes, op. cit., Chapter 196.405(3).
20 Loc. cit.
1 1 2
the findings, or the witnesses who would he called.21 All
the provisions of the four commissions for the granting of
rehearings fall upon the determination hy the commissions
that there is sufficient reason for the rehearing. The
Federal Power Commission has held, similarly that, in a
petition to reverse the rulings of a trial examiner, since
no new facts have heen alleged and no principles of law set
forth, there was no foundation which would warrant reversal
22
of'the examiner’s rulings. In this particular case,
which came forward even prior to a rehearing application,
the Commission did accept broader statements of evidence,
hut the rulings as to substance stood.
In summation, for the granting of an application for
rehearing, there must he stated concisely and specifically
the alleged errors of fact or law. Further the public
utility must set forth the nature of the basis for the
application. This may he in the broad outline of new
evidence, circumstances arising out of compliance with the
original orders, or changed conditions in the business
environment. Essentially, the procedures employed by the
four commissions are congruent. The slight variation in the
21
Pacific Freight Lines and Valley Motor Lines,
Inoorporatig',^ 5 “ C ^rgrT5^7370^rC LT.'
22
The Montana Power Company, Docket Number IT-5840,
April 1, 1§W, 6 F.P.C.R. 62§, 530 (1947).
1 1 3
rules of procedure tends to disappear in practice. It is
nevertheless significant to indicate that there Is no
specific provision for the notification of the parties to
the proceeding of an application for a rehearing in Calif
ornia. By practice the parties are informed of the
petition, hut as to designated procedure, there is none.
Rehearing procedure, once the petition has been granted by
the commission concerned, follows that which is employed In
the conduct of the original hearing.
B. Appeal and Review
The determination of the procedural requirements of
administration and adjudication is governed through the
judiciary on the general basis of two channels. The courts
compel the observance of certain procedural requirements
which are set forth in the emboyding statute. These desid
erata touch both quasi-legislative and quasi-judicial
aspects of administrative regulation. Under the procedural
aspects of the statute, the commissions generally follow
rather clear-cut outlines of procedure with most of the
provisions being express rather than implied. The questions
arising from the statutes usually hinge upon jurisdictional
findings rather than pure procedure. The second channel,
however, in which the courts compel the administrative
agencies to adhere to certain procedures deals with due
1 1 4
process of law as put forward toy the United States
Constitution. It is chiefly on this toasis that the courts
tend to enforce, when and if the need arises, the observance
of what they consider to toe due and proper procedure.2^
In an authoritative work on administrative law with
respect to the judicial review of administrative decisions,
it has been stated that there evolved a formula toy which
it is suggested that the administrative tribunal acts
without jurisdiction if it disregards a principle of law
24.
or issues an order without evidence. * Dickinson states:
The review of administrative action had its origin
in part at least in the common law doctrine of ultra
vires with the result that review centered around 'the
Issue of jurisdiction instead of a proceeding to
correct an error or abuse toy an inferior tribunal...”25
Thus it is again suggested that many of the procedural
questions arising from statutory provisions deal with the
mixed consideration of substance and procedure through
jurisdictional issues. The question now arises as to what
is considered toy the courts to toe the requirements of pro
cedure, due and proper, which are expressed or implied in
23
J. Roland Pennock, ”Judicial Control of Administra
tive Decisions,” The Annals of the American Academy of Polit
ical and Social Science, 221: l3§, May, 1942.
2^ Jotm Dickinson, Adminiatrative Justice and the
Supremacy of law in the United. States, ( Cambridge:’ Harvard
University Press,”T927), p. 307.
25 Loc. cit.
1 1 5
the statutes and the Constitution.
Certain hasic propositions may he made concerning the
hroad field of judicial review. First, when a rule or order
is being considered, the parties who may be unfavorably
affected by the order must be notified and given the oppor
tunity to know the nature of the issues in the particular
proposed decision. Further, they must be given the
opportunity to submit evidence and cross-examine witnesses
in the course of the hearings. Finally, the administrative
agency must make its decision on the basis of the record,
and there must be substantial evidence to support the de
cision made. The first two of these propositions have been
considered in earlier chapters; the present question turns
to the consideration of the administrative agency*s record,
evidence, and the extent of judicial review of commission
decisions.
An early principle established concerning the review
of the California Commission^ orders and determinations by
the California Supreme Court was to the effect that a case
of review is to be heard entirely upon the record of the
Commission as certified by it. In addition, the court
admits in evidence only that which appears in that record.
26
See Public Utility Act of the State of California,
op. cit., Section 61(a).
116
Similarly, review of the orders of the Wisconsin Commission
are made on tbs basis of the record of the proceedings.27
Wisconsin appeals are made to the Circuit Court for Dane
county, and the aetTons are commended against the commission
as defendant to vacate and set aside the order.2® The Hew
York public service law states that all actions and proceed
ings in which the Public Service Commission is a party, and
in which any question arises under the law or commission
orders, will have preference over all other civil causes
except election causes in all of the cotarts of the State of
Hew York, and the actions will be heard and determined in
preference to the other proceedings regardless of the
position on the calendar.22 A similar provision of the
Wisconsin law holds that all actions seeking to set aside
orders 6f the commission shall have precedence over any
civil cause of a different nature, and the circuit court
shall always be deemed open for the trial thereofj the
actions are tried and determined along the lines of other
30
civil actions. Thus, the Wisconsin procedure goes beyond
Wisconsin Statutes, op. cit., Chapter 196.41,
Paragraph Tl
oQ
hoc, cit..Chapter 196.41 Paragraph 2.
29
Public Service Law of the State of Hew York, op. cit.,
Article 1, Section 21, Paragraph 1.
hoc. cit.
that of New York in the degree of precedence of actions
against or providing for the review of commission orders.
The California statute, however, goes even beyond the Wis
consin position* Within thirty days after the rendition of
the California Commission’s decision on the rehearing, the
applicant may apply directly to the Supreme Court of the
State of California for a writ of certiorari or review for
the purpose of having determined the legality of the
original order or decision or the order or "decision on
rehearing inquired into and determined.”31 The writ of
review is returnable not later than thirty days after the
date of issuance of the writ, and it directs the California
Commission to cerfity its record in the case to the court.
On the return day, the cause "shall be heard by the Supreme
Court, unless for a good reason shorn the same be continued.38
Again, the statute reiterates expressly the earlier implied
principle that no new evidence may be introduced in the
Supreme Court, and the cause shall be heard on the record of
the Commission as certified by it.33 The review is to
determine whether the commission has regularly pursued its
31 Public Utility Act of the State of California, op.
cit.,Section SV.
1 1 8
authority, including a determination of whether the order of
the commission under review violates any right of the
petitioner under the Constitution of the United States or of
the State of California.
The parties to the original proceeding have the right
to appear before the Supreme Court; upon the hearing the
Supreme Court enters its judgment either affirming or setting
aside the decision of the Commission.34
An important factor concerning the finality of the
California Commission*s findings of fact is that the statute
provides that;
In any proceeding wherein the validity of any order or
decision is challenged on the ground that it violates any
right of petitioner under the Constitution of the United
States, the Supreme Court shall exercise an independent
judgment on the law and the facts, and the findings or
conclusions of the commission material to the determin
ation of the said constitutional question shall not be
final.35
Thus, the procedure involved in the consideration of a pro
cedural or substantive right of an Individual under the
United States Constitution is for the California Supreme
Court to make or exercise ”independent” judgment on the law
and the facts. In thi3 manner the findings of the commis
sions as to both law and fact are not final. It should also
be noted that appeal may be made from the California Supreme
54 Loc. cit.
35 Loc. cit.
119
Court to the United States Supreme Court. This procedure
was the one which predominated prior to the passage of the
Johnson Act in 1934.
The Johnson Act, as it affected the procedure followed
in administrative agencies, was of vast importance. The gen
eral practice was to keep issues "before the courts and in
this way prolong the investigations. By thus keeping the
disputes in the court channels, the utility companies were
successful in slowing down the regulatory process. The
Johnson Act, however, made this practice more difficult, and
appeals to the district courts were limited. The law states:
Notwithstanding the foregoing provisions of this
paragraph, no district court shall have jurisdiction of
any suit to enjoin, suspend, or restrain the enforcement,
operation, or execution of any order of an administrative
board or commission of a State, or any rate-making body
of any political subdivision thereof, or to enjoin,
suspendy or restrain any action in compliance with any
such order, where jurisdiction is based solely upon the
grounds of diversity of citizenship, or the repugnance
of such order to the Constitution of the United States,
where such order (1) affects rates chargeable by a
public utility, (2) does not interfere with interstate
commerce, and (3) has been made after reasonable notice
and hearing, and where a plain, speedy, and efficient
remedy may be had at law or in equity in the courts of
such State.3®
This law passed by the Seventy-Third Congress has thus af
fected the procedure of state commissions in the enforcement
phase.
36 48 U.S. Stat. at L. 775, Ghapter 283, (73d Congress,
Session II, May 14, 1934).
1 2 0
It has been held, concerning the judicial review of
an order or finding of the Federal Power Commission, that
review may be made only of a Commission order and not of a
mere declaration of findings alone. Dickinson has made
the statement that: wIt would seem that when the courts
are unwilling to review, they are tempted to explain by the
easy device of calling the question one of ‘fact,1 and when
otherwise disposed, they say that It is a question of ‘law1 .’ ’ 38
Separation of questions of fact and law is a problem of long
standing, and there is as yet no single or multiple formula
for resolving it. The tendency appears to be to accept even
mixed questions of fact and law as a final determination of
39
the administrative body. Some questions have been held
to be definitely those dealing with facts, but even here it
is possible to read into the determinations elements of law.
It has been held by the Wisconsin Supreme Court that such
questions as the determination of what utility property is
used and useful for public convenience are questions of fact,
Carolina Aluminum Company v. Pederal Power Com
mission, 97 F 2d 43B1193S) . —
n e o
Dickinson, oj>. cit., p. 55
39 Ibid., P* 159.
1 2 1
40
not of law. Therefor©, the finding of the Wisconsin
Commission concerning the "used and useful” status of utility
property could not he set aside hy a reviewing court. In
deciding a question which was considered one of law, the
Calif ornia Commission’s action in authorizing the transfer
of a certificate was subject to review. The question hinged
upon whether or not the Commission had erroneously decided
a question of law which went to its jurisdiction to act in
the transfer proceedings.^
Again, the tendency appears to accept as final the
findings of administrative commissions when there are in
volved questions of mixed fact and law. Any early decision
indicated that where the decision of questions of fact is
committed by Congress to the judgment and discretion of an
administrative officer or agency, the decision thereon is
conclusive. The court decision stated:
...even upon mixed questions of law and fact, or of
law alone, his (the administrator’s) action will carry
with it a strong presumption of its correctness, and
the courts will not ordinarily review It, although they
may have the power, and will occasionally exercise the
right of so doing.^
4 A
Lake Superior District Power Company v. public Ser-
.vice„.Commiasion, '265 Wisconsin 669, 294 N.W. 45, 3T P.U'.R.
^ Sale v. - Railroad Commission, 15 Cal (2d) 612, 104 P
(2d) 38, 36~pTu.R. (N.S.) 46’ 9 ' (IMG ).
Bates and Guild Company v. Payne, 194 U.S. 106 (1904).
See also T ennessee Eastern Electric Company v. Hannah, Supreme
Court of Tennessee, 1928, 1ST Tennessee 582 (1928)'.
1 2 2
Thus is indicated not only the tendency toward the accept
ance as final the findings of administrative agencies on
mixed questions of fact and law, hut also there is an early
indication as to the "strong presumption" of correctness or
the concept in administrative proceedings of presumptive
validity. It has heen suggested that efficient administra
tion demands a fusion of adjudication and administration, and
the evolvement of some acceptance of mixed questions of fact
and law as being accorded some degree of finality may re-
43
fleet this suggestion.
The Hew York Public Service Commission, in a review of
one of its decisions, had one of its rules bolstered when the
court held that a commission ruling of long standing, while
not being conclusive, is entitled to considerable weight even
when the subject Is not free from doubt.44 The decision tend
ed to advance the earlier concept of presumptive validity.
Another court has ruled that if the administrative order or
decision is a "sensible exercise of judgment," one that a
reasonable person could have reached in the light both of
43 Marshall E. Dinock, "Control Over Administrative Ac
tion," an essay in Charles G. Haines, and Dinock, Marshall E.,
editors, Essays on the Law and Practice, of. Governmental Admin-
is t rat ion (Balt Imore: The'John " & opikihs” Press', 1935), p. 14YV
^ ?e°p3-e ex rel. Public Service Commission v. Mew York
Telephone Company, 262 App DIv 440, 29 M.Y1 . Supp. (2d)‘“£T3,
40 P.I.R. (N.S.) 511 (1941).
1 2 3
the facts and the law, It is not to he disturbed and must
stand.^® A Wisconsin court has similarly ruled that the
court can set aside findings of the Wisconsin Public Service
Commission only when the findings are of such a character
that the court can clearly say that they are unreasenable.46
An earlier decision sought to put forth certain procedural
and substantive standards which, through a negative approach,
would indicate the requirements of Hreasonableness.t t This
court decision stated:
There is no test of reasonableness that will fit all
cases, but an order is unreasonable if (1) contrary to
federal or state constitutions or laws, (2) or if be
yond the power of the commission, (3) or if based on a
mistake of law, (4} or if without evident to support it,
(5) or if so arbitrary as to be beyond the exercise of
reasonable discretion and judgment.
A very recent court decision reiterated the point concerning
the requirement of substantial evidence* It was held that
the court may not disturb a commission order where there is
competent and substantial evidence supporting the findings
48
of that body. Another decision has held that the court
^Gray v. Powell, 314 U.S. 413 (1941).
46Lake Superior District Power Company v. public
Service Commission,~op. cTt., 255 Wisconsin 667 (1940).
47gtate v. great northern Railway. . Company, 130
Minnesota 5? (1915) .
48Duauesne-Light Company, v. Pennsylvania Public
Utility Commission, 7*7 P.U.R. (N.S.) 128 (1949).
does not act as an ad minis trat ive body to determine whether
or not it would have reached the same fact conclusi on that
the commission reached, but that it will consider only
whether the action of the ageney in its determination of the
facts "is reasonably supported by substantial evidence."49
This case considers the action of the agency and the neces
sity for substantial evidence to support such action* Where
as this particular case has deliberated on the action,
■ m
another court has held that the review of an administrative
agency’s determination of facts is limited to the consider
ation of whether there is substantial evidence to sustain
50
its action even though review is by suit. The lack of
substantial evidence or the presence of arbitrary rulings
have been held within the realm of an error of law, and
either of such errors of law will constitute sufficient
grounds for the reelsion of an administrative determin-
51
ation. The principle indicated is that administrative
decisions will stand unless there has been an error of law.
In Dobson v'. Commissioner, it was held that when the
49 Gulf Land Company v. Atlantic Refining Company, 154,
Texas 59, TST'sTWTW '73_ 11939)"---------------------—
Trapp v. Shell Oil Company, 198 S.W. 2d 424 (1946).
^ South Qhicago Coal and Dock Company v. Bassett, 3G9
U.S. 251 (194b). See also Interstate Commerce Commission and
H.R.R., 227 U.S. 99 (1913).
1 2 5
court cannot "separate the elements" os a decision so as to
✓
identify a marked and clear-cut mistake of law, the order or
decision of the adminiatrative tribunal must stand*52 While
this case did not directly concern an administrative body,
it did have indirect bearing in that it was suggested that
the Tax Court was governed by the same rules as had been
applied to administrative tribunals. This decision tends to
implant even more securely the idea that there is a certain
presumption of validity in the decisions or orders of admin
istrative commissions. The burden is on the,courts to sep
arate the questions of fact and law, and if there can be no
clear-out separation, the determinations made by the admin
istrative agencies will not fall*
An early court ruling concerning the finality of
administrative agencies held that:
The recognition of the utility and convenience of
administrative agencies for the investigation and finding
of facts within their proper province, and the support of
their authorized action, does not require the conclusion
that there is no limitation of their use, and that
Congress should completely oust the courts of all deter
minations of fact by vesting the authority to make them
with finality in its instrumentalities or in the execu
tive department. This would be to sap the judicial power
as it exists under the federal Constitution, and to
establish a government of bureau-rights depend, as not
infrequently they do depend, upon the facts, and
KO
Dobson v. Commissioner, 320 U.S. 489, 502 (1943)
1 2 6
finality as to facts becomes in effect finality in
law.53
This decision, written by Chief Justice Hughes, puts forth
that even in the findings of fact, there should not he com-
•
plete removal of the determinations of the administrative
agencies from the review of the courts. A more recent court
ruling, however, has held that since Congress has specified
that certain administrative orders are subject to the ap
proval of the president, this impliedly removes them from
54
judicial review and the consideration by the courts. It
is a question yet to be answered as to extent which this
principle can be accepted. In court decisions recency does
not necessarily mean supremacy. Another recent court ruling,
a decision of the Hew York Supreme Court, has indicated that
significant weight is being given to the Crowell v. Benson
decision. The Hew York court has held that where there is no
showing that an administrative body, in the process of de
cision making, read the minutes of a proceedings or
considered exhibits put forward, its conclusions are
arbitrary or not Its own. The court herein may refuse to
issue an enforcement order despite statutory provision that
55 Crowell v. Benson, 285 U.S. 22 (1932).
C and S Air Lines v. Waterman.S.S. Corporation, 333
U.S. 103 (T91ST.-------------------------- ------------
127
the agency* s findings of fact are conclusive if supported hy
evidence.55
A tangent ruling concerning the California Commission
has "been to the effect that in the absence of fraud or mis
representation, the recision of an order authorizing the
transfer of an operative right would be without legal sanc-
56
tion. Xn actions for judicial review of commission orders
as well as the reconsideration of commission rulings by the
agency itself, it appears that the original decision will
prevail unless there can be put forth substantial evidence
or indication of unreasonableness or unlawfulness of such
order. While the Western Warehouse and Transfer Company
order related to the absence of fraud or misrepresentation
in the deliberation of administrative finality, there has
been a positive approach by a federal agency to the effect
that, in such matters as the misrepresentation as to the
ownership of the stock of a company, such misrepresentation
is just cause for the refusal to renew licenses. The ruling
was appealed on the grounds that there was not sufficient
consideration to the record of good service in the past and
55
Hew York Labor Board v* Grief Realty Corporation,
Hew York Supreme Court,Special Term, Kings County, March 28,
1947.
Western Warehouse and Transfer Company, 45 G.R.C. 94
(1943). ----------------------------------
128
the indication of the ability to continue such good service
in the future. In upholding the lower decision, the court
said: ”We agree that this is a hard case, but we cannot
agree that it should be alloY/ed to make bad law.”5^ Thus, by
both positive and negative approach, the element of misrep
resentation is an Important factor to be considered in the
finality of administrative decisions. “The judicial function
is exhausted” when there is found to be a rational basis for
the conclusion approved by the administrative body.®® The
key points In the rationality of rulings are that they be
made on a reasonable basis in law and have "warrant in
record.”5®
In reference to the finality of administrative orders
or decisions, an order issued by'the California Commission
was upheld by the California Supreme Courtj the company
then sought a writ of review. It' was held that the Com
mission order being upheld by the supreme court constituted
a“bar to further litigation on the same subject matter in
the Federal district court since the court had acted in a
^ Federal Communications Commission v. WOKG, 91 L.ed.
206 67 Sup. Ct. Hep. 213 "(1946)T
C Q
Rochester Telephone Company v. United States, 307 U.S.
125, 146 (1939).
National Labor Relations Board v. Hearst publications,
Incorporated, 322 U.S. Ill, 131. See also Harvard Law Review,
S7:iir2, ;~T§?4.
129
judicial capacity.60 The basic question falls upon the
original capacity In which the commission originally acted
and the subsequent scope of reconsideration.
A si@iificant question In the finality of adminis
trative determinations which concerns administrative proced
ure, deals with the role of the trial examiners. A
California court has indicated that a commissioner or
examiner may appear in the capacities of a complaining .
witness who filed the charges, a juror to weigh the evidence,
and a judge to pass sentence.®^ Good ethics, it was stated,
should not permit him to occupy those positions . Thus was
implied somewhat directly that judicial process guarantees
to a higher degree the rights of the individual, whereas,
the administrative process tends to place in jeopardy such
rights through the existence within one entity the capacity
of the prosecutor and the judge. The idea has been put forth,
however, that the development of evidence is not necessarily
62
prosecution. Further, it has been suggested that any
adjudicator, judicial or administrative, can maintain the
Consolidated Freightways v. California Railroad Com
mission, 36 F Supp. 269, 39 P.U.R. (H.S.) 443 "
6^ - Nider v. Roman, 32 Cal. App* 2d 11, 20, 89 P2d 136,
141, (4th District, 1939).
Kenneth Culp Davis, ’ ’Separation of Functions in Ad
ministrative Agencies,” Harvard Law Review, 61:645, 1947.
130
scales of justice in even "balance and still grant a temporary
restraining order or authorize the institution of adminis-
put forward, however, that the adjudicator "by the very nature
of the court system can "balance the scales of justice, where
as an administrative adjudicator by virtue of the fusion of
administration and adjudication has difficulty in so doing.
For example, it has been held that the act of a majority of
the commissioners in California, in reopening an operative
right transfer proceeding, operates to place the California
Commission in the position of an adversary party. wIt thereby
assumes the burden of seeking to establish by competent
evidence that the prior order of the Commission thus made an
issue, should be set aside or annulled.'1®^ A Wisconsin
Public Service Commission^ engineers and counsel in the
preparation and introduction of evidence in a proceeding to
determine the purchase price to be paid by a municipality
for the acquisition of property of an electric company is not
objectionable as a participation of the agency on behalf of
65
one of the parties in interest in the proceedings. The
trative proceedings.33 In the judicial process it has been
63
Loo. cit.
93 (1943).
64
Western Warehouse and Transfer Company, 45 C.R.G. 87,
Edgerton v. Wisconsin Power and Light. Company,‘57
131
Integration and fusion of administration and adjudication
need not necessarily mean that the inherent nature of the
commissions places those agencies in such a position. The
judicial courts are not entirely free from the channels of
m
promoting particular governmental or political policies, and
the administrative agencies do not hold a monopoly on
nadmini st rat i on.u
While these questions are not directly and specif
ically those of administrative procedure, they are involved
in any analysis of the comparative justice of the procedures
of judicial and administrative tribunals. Review of admin
istrative orders or decisions by the courts often involves
the consideration of these issues in the determination of
what constitutes procedural due process of law. A point to
be borne in mind is that there is no great degree of conflict
at every turn between the courts and the commissions. The
relationship centers around the gradual shifting of certain
function, which were thrust upon the courts by the rapidly
increasing complexity of the economy, from the eourts to the
administrative agencies. The courts do not wish to exclude
themselves, and properly so, from determining the facts of
law and the finality of such findings indicated by admin
istrative decisions. They do, however, lie in accord with
the shifting or relaxation of control. The difference in
the procedure utilized by the administrative commissions i3
1 3 2
one reason for the great degree of finality accorded to the
determinations of the commissions. A concise and effective
statement has "been made to the effect that:
One of the principal causes of the courts* relaxation
of control has been their actual inability to continue a
rigid exercise of that control because of their long
drawn out procedure, the present demands upon them, and
their lack of experience in administration.66
Thus, administrative procedure is intermixed not only with
the consideration of the finality of commission findings,
but also with the role of administrators and trial examiners.
The extent of the administrative finality is similarly a
contiguous element of procedure.
Summary and conclusion. In one way or another almost
every decision of an adminls trative tribunal can be called
into review by the courts. 1 Questions of facts are final
if supported by substantial evidence, and questions of law
are open to review. The positive reason for declining
judicial review over administrative findings of fact lies in
the belief that the expertness of the administrative process,
if guarded by adequate procedures, can be trusted to
66
Wilson K. Boyle, Independent Commissions In the Fed
eral Government (Chapel HilH university of Worth Carolina
Press, 1939), P* 79•
67
See W. H. Pill3bury, "Appeal from Administrative
Tribunals,1 ' Harvard Law Review, 36:588, March 1923.
133
determine these issue as capably as judges.The difficulty
in making a clear line of demarcation between questions of
fact and questions of law has been recognized in part in
the consideration of mixed questions of fact and law. A
recent court decision, Dobson v. Gommissioner, held that the
order of the administrative tribunal must stand unless the
court can make a separation of the elements of the order so
a3 to clearly identify a mistake of law.®9 There is evidence
that the courts in the review of administrative action are
inclined to accord greater respect and grant a higher degree
of finality to the determinations of the commissions which
are quasi-legislative than to those of a quasi-judicial
70
nature. Even so, the orders or decisions of administra
tive agencies are given a certain presumption of validity,
and they will not be reversed unless there is definite
evidence that they acted in an unreasonable or unlawful
manner.
The increasing reliance upon the judgment of experts
in the field of administrative adjudication appears to be
68
See James M. Landis, The Administrative Process
(Hew Haven: Yale University Press, l9'38), p. 14?.
®9 Dobson v. Commissioner, op. eit., 320 U.S. 489, 502
(1943).
70
See American Telephone and Telegraph Company v.
United States, 299 U.S. 232 (1936) , and Hatlonal Bro'adcasting
Company v. United States , 319 United States 190 (1943) .
sound. There are sufficient checks, however, to prevent
extremes In this trend. The procedure employed toy the
California Commission in the direct appeal to the State
Supreme Court is a positive factor for effective regulation.
It offers the advantages of expertness while remaining
within the toounds of due process of law.
CH8LPTER XI
FUNDINGS M D CONCLUSIONS
Within the environs of a rapidly changing world as
affected by the impact of a higher technology, there has
been an accompanying evolution of new social and economic
concepts* The technological developments have brought
forth new problems, and the societal attitude has tended
to circumvent these new issues through extending the role
of government. With the increasing complexity of these
problems, there has been more call for their treatment and
control by ’ ^expert1 * ' agencies. The inability of the judicial
process to successfully cope with the complex problems
peculiar to public utilities resulted in the establishment
of administrative commissions. Subsequently, the adminis
trative agencies turned to evolving new procedural avenues
which would facilitate the performance of their duties and
advance the achievement of effective and equitable
regulation.
It has been seen that the public service commissions,
in the course of the development of their rules of procedure
have permitted much flexibility in the eonduct of formal
proceedings. They are not bound by the technical and rigid
rules of procedure characteristic of courts of record. This
holds true in the area of amendments to pleadings, the
initiation of commission action, the informal negotiations, ,
and the admission of evidence. Hearsay may he accepted be
fore administrative tribunals, but such is only partial
evidence. It must be supported by other evidence approaching
that which is acceptable in courts of record. There must be
more than a **mere scintilla**' of evidence if the administrative
determinations are to stand. The significant point, however,
is that the commissions through the flexibility of their
procedure go beyond the judicial process in f inding the facts
underlying a dispute. The procedure employed by the public
service commissions of the states of California, Wisconsin,
and Hew York is essentially the same. The procedure of the
Federal Power Commission is likewise similar to that of the
state Commissions. There is no significant variation in the
admission of evidence before them*
There is a difference of notable importance, however,
in the procedure concerning the use of informal negotiations
prior to the conduct of the formal hearing. In short, it
may be said that the Federal Bower Commission has, through
its rules of practice and procedure, surpassed the state
public service commissions in promoting the settlement of
disputes through prehearing conferences# Even if the
settlement of the dispute is not effected, the procedure
involved in the conduct of such prehearing conference does
tend to expedite the subsequent formal hearings. This Is
clue largely to the simplification of issues, the limitation
of the number of expert witnesses to appear in the hearing,
and the agreements concerning the introduction of documents
as well as the service of documents* The California Public
Utilities Commission does promote, in practice, the dispos
ition of disputes through informal negotiations* Such
procedure, however, is generally limited to the exchange of
offers of settlement through the mail or by personal telephone
conversations* In this channel, the California Commission
tends to dispose of informal complaints, and in the handling
of formal complaints may suggest that the parties to the
dispute make such offers of settlement before the commencement
of formal investigations* The important procedural aspect,
however, is that the Federal Power Commission makes specific
provisions in its rules of procedure for the conduct of
prehearing conferences before a trial examiner* The state
commissions, on the other hand, mdre no such specific pro
vision except perhaps in the stipulations as to facts* Thus,
the informal negotiations emanating from informal complaints
or formal complaints do not have the scope of activities as
outlined by the Federal Power Commission* It is in this
sphere that the procedure of the California Commission might
be improved to the advantage of hoth the producers and the
consumers of public utility service* & procedure in
practice may be sound and proper, but it does not have the
1 3 8
certainty which would result from specific provision for
such procedure in the rules of the Commission* It is felt
that a definite provision in the rules of procedure for
prehearing conferences is highly desirable* It would con
stitute a positive channel through which the parties to a
dispute may be given the opportunity to meet under the
guidance of a member of the commission staff* Again, the
certainty attendant upon the definite provision for prehear
ing conferences would warrant such a provision even If such
conferences may be offered in practice.
Another cardinal point at which there has been a
variation in the procedure of the administrative commissions
of this study lies in the area of the enforcement of
Commission determinations* The Federal Power Commission,
the Public Service Commission of Hew York, and the Public Service
Commission of Wisconsin resort to the eourts for the primary
steps in the enforcement of their orders* This general
procedure channeled through the courts turns to the use of
writs of mandamus, injunction, and the institution of
contempt proceedings. The procedure in California, however,
is superior in that, through the use of the contempt power
granted by the state constitution, the Commission need not
petition the Gourts of record and be subject to the delay
attendant upon such action. It may take the initial step
in the enforcement of its decisions or order. It Is also
139
" worthy of note that the California Commission need not turn '
to the courts in such matters as compelling the attendance
of witnesses. In the event that rulings of the commission
are appealed to the California Supreme Court, the contempt
proceedings are cumulative and in addition to other
proceedings.
Another salient point of difference in the procedure
of the various commissions is in relation to the appeal and
review of administrative determinations. This question
closely parallels that of the enforcement of orders or
decisions. It has been found that for the granting of a
rehearing by the administrative commission, there must be
specifically stated in the petition the alleged errors of
fact or law. Similarly, there must be corresponding grounds
for app>eal to the courts of record. The appeals in Wisconsin
are made to the Circuit Court for Dane county. This method
of appealing to the district court Is the prevailing pro
cedure followed by state commissions. The Federal Power
Commission turns to the United States District Courts which
have been granted appellate jurisdiction in F*P.C* cases.
The California Commissions determinations are appealed
directly to the California Supreme Court* This is a more
direct and expeditious procedure than followed by the other
three commissions under study. The order of the Hew York
Commission similarly appealed to the Hew York Supreme Court,
........ 140
but such procedure is not validly comparable to that of
California, The Hew York Supreme Court occupies somewhat
of a unique position in that It is not the final state
appellate court. Therefore, of the four commissions con
sidered in this study, the procedure of the California Com
mission is superior in that it tends to minimize the
dilatory actions of the public utilities.
It has been seen that, in general, the findings of
fact are conclusive if such findings are supported by
substantial evidence. Questions of law involved in adminis
trated determinations are open to review. There is great
difficulty, however, in making a clear-cut distinction
between questions of fact and questions of law. There has
been evidenced in the decisions of the courts a certain
tendency to give a degree of presumptive validity to the
decisions of administrative agencies even on mixed questions
of fact and law. In Dobson v. Commissioner, it was held
that administrative determinations must stand unless the
court can make a clear-cut separation of the elements of
the order so as to indubitably identify a mistake of law.
In conclusion, the assertion may be made that in one way or
another most of the decisions of administrative tribunals
may be reviewed by the courts* There is, however, increas
ing reliance being placed upon the decisions of adminis
trative officers in both areas of a fact and the mixed
; 141
* A
questions of fact and law. This crescent use of presumptive
validity of commission decisions is an indication that the
administrative procedure employed in the formal investi
gations by public service commissions is within the bounds
of due process of law and in keeping with the concepts of
equity and justice.
Thus, the urnjor points of procedural variance as
employed by the Federal Fower Commission and the state
public service commissions hinge upon those dealing with
informal negotiations, enforcement proceedings, and appeal
to the courts. The major shortcoming of the California
procedure lies in the lack of specific provision for the
handling of informal negotiations. There appears to be a
definite need for specific provision for prehearing
conferences similar to the procedure at the disposal of
the Federal Power Commission,
Through the increasing recognition by the courts of
the presumption of correctness of administrative decisions,
the generally irreconcilable concepts of justice and
expediency join together in accepting and advancing the ad
ministrative procedure of the California Commission, Landis
has stated that the administrative process represented the hope
that policies to shape such technical fields as public utilities
“could most adquately be developed by men bred to the facts.”- * -
• ^Landis, op, clt., p• 155.
142
The possible cooperative roles of justice and expediency may '
be indicated as Landis further statedj
That hope is still dominant, but its possession bears no
threat to our ideal of the ^supremecy of law.1 ' Instead,
it lifts it to new heights vhere the great judge, like
a conductor of a many-tongued symphony, from what would
otherwise be discord, makes know through the voice of
many instruments the vision that has been given him of
man*s destiny upon theearth.*;
Thus, administrative commissions deal with the facts and the
application of the law to those facts. By virtue of their
expert nature, these agencies have developed policies and
procedures which tend to fuse equity and expediency into one
regulatory process. The procedure of the California Commis
sion occupies an important position as an example to be
emulated. The major shortcoming lies in the absence of
specific provisions for prehearing conferences in the rules
A
of procedure.
^Loc. cit.
BIBLIOGRAPHY
A. BOOKS
C ham berlain, Jo se p h P . , Noel T. D owling, and P a u l R. Hays,
The J u d i c i a l F u n c tio n in F e d e r a l A d m in is tra tiv e A g e n c ie s.
New York: The Commonwealth Fund, 194-2* 258 pp.
D ic k in so n , Jo h n , A d m in is tra tiv e J u s t i c e and th e Supremecy o f
Law. Cambridge? H arvard U n iv e r s ity P r e s s , 1927. 4°3 pp.
D oyle, W ilson K ., In d ep en d en t Commissions in th e F e d e ra l
Governm ent. C hapel H i l l : U n iv e r s ity o f N o rth C a ro lin a
P r e s s , 1939. 106 pp.
G e llh o rn , W a lte r, F e d e ra l A d m in is tra tiv e P ro c e e d in g s .
B a ltim o re : Jo h n Hopkins P r e s s , 1941* 150 pp.
, -A d m in is tra tiv e Law: C ases and Comments. Chicago:
The F o u n d atio n P r e s s , 1947. 1138 pp.
L a n d is , James M ., The A d m in is tra tiv e P r o c e s s . New Haven:
Y ale U n iv e r s ity P r e s s , 1938. T&0 pp.
L e n tz , G i l b e r t G ., E nforcem ent o f th e O rd e rs o f P u b lic
S e rv ic e Com m issions. U rbana: U n iv e r s it y o f I l l i n o i s ,
P r e s s , 1940. 159 pp.
S tep h e n s, H a ro ld M ., A d m in is tra tiv e T rib u n a ls and th e R u les
o f E v id e n c e . Cam bridge: H arvard U n iv e r s ity P r e s s , 1933-
128 pp.
B. COMMISSION AND COURT CASES
Am erican T elephone and T ele g ra p h Company v . U n ite d S t a t e s .
299 UTS 232~(1936T.
B a te s and G uild Company v . Payne. 194 U .S. 106 (1904)
t
B eaver...g a l le y W ater Company v. D r i s c o l l . 28 F. Supp. 722, 30
P . U.R. (N. s “ f 305 (1939)
B e th e l I s l a n d Im provem ent C lub. I n c . v . F rank J . H o lla n d e r .
C a l i f o r n i a D e c is io n Number 42380, 77 P.U .R . (N .S .) 2 4 ( 1 9 4 8 )
Bronx Gas and E l e c t r i c Company v. M a ltb ie . 271 N.Y. 3 6 4 , 1 4
P .U .R . (W .S .) 337, 3A0 (1936)
145
C and S A ir L in es v . Waterman S..S. C o rp o r a tio n . 333 U .S . 103
~ n :948i —
C a ro lin a A 1 nwirrnrn Company v. F e d e ra l Power Com mission. 97 F.
2d 435 (1 9 3 8 ).
C e n tra l o f G eo rg ia R ailw ay Company y. W rig h t. 207 U n ite d
S ta te s 127, 28 Supreme C ourt 47 (1907)
Chicago and Calumet D i s t r i c t T r a n s i t Company y . P u b lic
S e rv ic e Commission. 41 P.U .K . ( N .S .) $19, 37 N.E. (2d)
271 (19421
C hicago. M ilwaukee and S t. P au l Railway Company v. Board o f
R a ilro a d C om m issioners. 76 Montana 305, 247 P. 162 "('1926)
C o n s o lid a te d E dison Company v . N a tio n a l L abor R e la tio n s B oard
305 U n ite d S ta te s 197, 59 Supreme C ourt 206 (1938)
C o n s o lid a te d Frei& htw ays v . C a lif o r n i a R a ilr o a d Com m ission.
36 F. Supp. 269, 39 P.U .R . ( E .S . ] ~ U 3 ( l9 4 1 ) .
C row ell v . B enson. 285 U .S. 22 (1932)
Dobson v . C om m issioner. 320 U .S . 489 (1943)
Duquesne L ig h t Company v . P e n n sy lv a n ia P u b lic U t i l i t y Commis
s io n , 77 P.U .R . (N .S .) 123 (1949)
E a st Bay M u n ic ip al U t i l i t y D i s t r i c t . 24 C.R.C. 967 (1924)
E a st S ide County W ater D i s t r i c t v . The San J o s e W ater Works
45 C.R.C. 643 ( 1945TT
E ast-W est R e fin in g Company v . A tch eso n . Topeka and S an ta Fe
R ailw ay Company, 26 C.R.C. 1 4 ( 1 9 2 5 ) .
E dgerton v . W isconsin Power and L ig h t Company. 37 P.U .R . ( N .S .)
272 (1941)•
E dison L ig h t and Power Company v. D r i s c o l l . 20 P.U.R. (N .S .)
358 (193717"
F e d e ra l Com munications Commission v . WQEP. 91 Law yers’
E d itio n 206, 67 Supreme C o u rt R e p o rte r 213 (1946)
F e d e r a l Trade Commission v. Cement I n s t i t u t e . 333 U .S. 683
C1948I ~
146
F l o r i d a Power C o rp o ra tio n v . P i n e l l a s U t i l i t y B o a rd , e t a l . ,
75 P.U.R. (N .S .) 252 (194S).
G e n e ra l Gas P ip e L in e C o rp o ra tio n . Docket Number G-123, Sep
tem ber 5, 1939, 2 F e d e ra l Po?/er Commission 577 (1939)
Gray v. P o w e ll. 31-4 U .S. 413 (194-3-) •
G u lf Land Company v . A tla n tic R e fin in g Company. 134 Texas 59
131 S.W. 2d 73 (19391
In d ep en d en t N a tu r a l Gas Company. Docket Number G— 173, 2
F e d e ra l Power Commission 803, (1940)•
I n t e r s t a t e Commerce Commission and N .R .R ., 227 US 99 (1913)
Lake S u p e rio r D i s t r i c t Power Company v . P u b lic S e rv ic e Com
m is s io n . 235 W isco n sin 667, 294 N.W. 45, 37 P.U .R . (N .S .)
510 ( 1 9 4 0 )
Londoner v . D enver. 210 U .S. 373, 28 Supreme C ourt 708, 52
L aw yers1 E d itio n 1103 (1 9 0 8 ).
M arket S t r e e t R ailw ay Company (R e h e a rin g ), 45 C.R.C. 162
(1944)
Morgan v. U n ite d S t a t e s . 298 U .S . 4 6 8 , 5 6 ,Supreme C ourt 906,
80 Law yers1 E d itio n 1288, 1295 (1936)
N a tio n a l B ro a d c a s tin g Company v . U n ited S t a t e s . 319 U.S. 190
( 1 9 4 3 7:
N a tio n a l Labor R e la tio n s . Board v . H e a rs t P u b l i c a t i o n s .
I n c o r p o ra te d , 322 U .S. I l l (1944)
N a tu r a l Gas P i p e l i n e Company v . F e d e ra l Power Commission .
38 P.U .R 7 ( N .S .) 257, 120 F." (2d) 625 (1 9 All
New York Labor B oard v. G r ie f R e a lty C o rp o ra tio n . New York
Supreme C o u rt, S p e c ia l Term, K ings County, March 2 8,1947.
’ .
N id e r v . Homan. 32 C a l. App. 2d 11, 89 P . 2d 136 ( 4 th D is
t r i c t , 1939)
N o rth w e ste rn E l e c t r i c Company and P a c i f i c Power and L ig h t
Company, D ockets Numbers I T - 5998, IT -6 0 0 0 , August 27,
1946, 5 F .P .C . 738, 739 (1946)
147
P a c i f i c F r e ig h t L in e s . D e c isio n o f th e C a l i f o r n i a P u b lic
U t i l i t i e s Commission, D e c isio n 34526 (1949)
P a c i f i c F r i g h t L in es and V a lle y Motor L in e s . I n c o r p o r a te d ,
43 C .R .C . 559 (l94lT~
P eo p le v . D epartm ent o f H e a lth , 189 Hew York 187, 82 I . E .
187, 13 L.R.A . ( ¥ . S . F 894 (1907)
P eople ex r e l . P u b lic - S e rv ic e Commission v. New York
T elephone Company, 262 App. D ir. 440, 29 N.Y. Supp. (2d)
513, 40 P.U .R . (N .S .) 511 (1941)
P eo p le ex r e l . R i t t e r v. W a lla c e . New York Supreme C o u rt, 160
App. D iv . 787 (1914)
P e o r ia B ra u m e is te r Company v. Y e llo w le y , 123 Fed (2d) 637,
' C. C. A. 7 th ( l9 4 ll
P ix le y ( F u r n itu r e F a s t F m g h t ) , 43 C.R.C. 246 (1941)
P re n d e rg a s t v . New York T elephone Company, 262 U .S. 43 (1923)
Re A tc h iso n , Topeka and S a n ta Fe R ailw ay Company. 27 C.R.C.
4 6 4 (19267
Re C h a rle s M. Thomson. T ru s te e o f P ro p e rty o f Chicago and
N orth W estern Railway Company. 41 P.U .R . (N .S .) 171(1941)
Re Commonwealth T elephone Company. 41 P.U .R . (N .S .) 94 (194-1)
Re H enry (West Sacram ento W ater Company) . 46 C .R .C . 469 (1946)
Re Hugoton Gas F i e l d . 77 P.U.R. (N .S .) 157 (1949)
Re I n t e r n a t i o n a l R ailw ay Company. 39 P.U .R . (N .S .) 392 (1941)
Re K a g a r is e . 42 C .R .C . 675 (1940)
Re N o rth w e ste rn E l e c t r i c Company. 36 P.U .R . (N .S .) 202 (1940)
Re Old F orge E l e c t r i c C o rp o ra tio n . 41 P.U.R. (N .S .) 107 (1941)
Re P a c i f i c Railw ay Company. 22 C.R .C. 236 (1925)
Re R e v isio n o f S e rv ic e R ules f o r E l e c t r i c U t i l i t i e s . 40 P.U .R .
(N.S.) 9 9 (1 9 4 1 )• '
148
Re Savage TransportstIon Company, Decision Humber 43003,
California Public Utilities Commission, June 14, 1949.
Re Village *of Waterloo, 41 P.U.R. (N.S.) CO (1941).
Re Western Warehouse and Transfer Company, 45 C.R.C. 87
Haw: ~ “ *
Rochester Telephone Company v. United States, 307 U.S. 185
Tl'93§). ~ ’
Sale v. Railroad Commission, 15 Cal (2d) 612. 104 P. (2d) 38.
36 P.U.r:-"*TN.S. ) 4^71940).
South Chicago Coal and Dock Company v Bassett, 309 U.S. 251
Ti940).
_State v. Great Northern Railway Company, 130 Minnesota 57
(1915 y : ~
State v. State Public Service Commission, 95 Washington
376 (1917). “ “ "
^State Board of Milk Control v. Newark Milk Company, 118
N.TTfq. 504, 1,79 A. 116 (1936). ”
State ex rel. Alton Railway Company v. Public Service
Commission155 '9.W. (2d)‘ 149, 41 P.U.R. (U.S.) 135
nmr.—
Tennessee Eastern Electric Company v. Hannah, Supreme Court
of Tennessee, 167 Tennessee 582 (lS2S>.
The City of Toledo, Ohio v. Hope Natural Gas Company,
Docket Number G-T7B7 J uiy3S, "TSJOT* 2 F.P.C. 787 (1940).
The Montana Power Company, Docket Number IT-5840, April 1,
1947, 6 FTPTU." “ Sfl "(1947).
Town of Madison v. Madison City Water Department, 41 P.U.R.
(¥7S .) 53 (194117^
Trapp v. Shell Oil Company, 198 S.W. 2d 424 (1946).
Twining v. New Jersey, 211 United States 78 (1908).
United States v. Abilene and Southern Railway Company, 265
UTETTSTr (19^07--- ------ ------------------- ------
United States ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923).
149
Welraer v Bunbury. 30 Michigan 201 (1874).
Western Natural Gas Company, Docket Number G-168, 2 F.P.C.
§02 (l§4’ 0).
Western Warehouse and Transfer Company, 45 C.R.C* 94 (1943).
C. PERIODICAL ARTICLES
Blachly, Frederick F., Miriam E. Oatman, HA United States
Court of Appeals for Administration," The Annals of the
American Academy of Political and Social Science, 221:
T7S-182, May, 1942.
Brown, Ray A., "Public Service Commission Procedure - A Prob
lem and a Suggestion," Pennsylvania Law Review, 87:139,
1938.
Davis, Kenneth Culp, "Separation of Functions in Administra
tive Board," Southern California Law Review, 23:77,
December, 1949." ’
Day, A. J., "Right to Oral Argument Before an Administrative
Board," Southern California Law Review, 23:77, December,
1949. ~
Isaacs, Nathan, "Logic v. Common Sense in Pleading," Michigan
Law Review, 16:589, 1918.
Mayock, Wilburn, "Administrative Agencies and the Constitu
tion, “ An Address delivered before the Ninth Judicial
Circuit Conference, Los Angeles, California, June 28,
1949* Vital Speeches of the Day, 15:685, September 1,
1949.
Mendelson, Wallace, "The Public Service Commission of Wis
consin: A Study in Administrative Procedure," Wis
consin Law Review, 40:509, 1940.
Pennock, J. Roland, "Judicial Control of Administrative
Decisions," The Annals of the American Academy of
Political and "Social Science, 221:183-191," May, 1942.
Pillsbury, W. H., "Appeal from Administrative Tribunals,"
Harvard Law Review, 36:588, March, 1923.
1 5 0
D. CONSTITUTIONS, STATUTES, AND GOVERNMENT DOCUMENTS
Administrative Procedure Act, 79th Congress, Second Session,•
~ 1944-XS4S7 Document Ifumber 248.
Annual Report, California Public Utilities Commission, State
of California, Ninety-ninth Fiscal Year, July 1, 1947 to
June 30, 1948.
California Administrative Code, State of California, Title
20,' Public Ut'i'lities, Distributed by the Printing Divi
sion of the Documents Section, 11th and 0 Streets,
Sacramento 14, California.
Constitution of the State of California, Including amend
ments adopted to November 2, Y§48.'“ Article XII,
Section 23 related to public utilities.
Constitution of the State of Louisiana, Article VI, Section
4 relating to public utilities.
Constitution of the State of Oklahoma, Article IX, Section
XS""relating to public utilities.
Constitution of the State of Virginia, Article XII, Section
158{c) ' "relating to public utilities.
Constitution of the United States.
Federal Power Act, Amended to January 1, 1940. Washington:
Government Printing Office, 1940.
Federal Power Commission, General Rules Including Rules of
~ ~ ~ Practice and' “ Procedure"'(Effective September 11,19467*7
Amended to June 18, 1947. Federal Power Commission,
Document A-27, 1947.
Final Report, Attorney General1 s Committee on Administrative
Procedure, Senate Didcument Number 8, 77th Congress, First
Session, 1941.
Johnson Act, "An Act to amend section 24 of the Judicial Code,
as amended, with respect to the jurisdiction of the dis
trict courts of the United States over suits relating to
orders of State administrative boards," 73d Congress,
Session II, U.S. Stat. at L., Volume 48, Part 1, Chapter
283, May 14, 1934, p. 775.
1 5 1
Public Service Law of the State of Hew York, Complete with
Amendments and "Snnotations to June 1, 1945. Albany: Pub
lic Service Commission, 1945.
P u b lic U t i l i t i e s Act o f th e S ta te o f C a l i f o r n i a and R e la te d
Cons t i t u t i o n a l and S ta tu to r y P r o v is io n s A pplying to “
P u B lic U t i l i t i e s , w ith 1 9 4 7 Amendments.
Report of the President1a Committee on Administrative Manage
ment, TSth Congress, First {-Session, 193?. Included in
Reorganization of the Executive Branch of the Government
of the United' States, Public Affairs“ iulletin Humber €>67
’ TEe’ "Xlbrary of Congress Legislative Reference Service.
Washington: Government Printing Office, February, 1949.
Rules of Procedure of the Public Service Commission, State
of New York, Effective' U'uiy"1, 1943, Albany: ¥ublic
Service Commission, 1943.
Wisconsin Statutes Relating to the Public Service Commission
~of Wisconsin and the Regulation of Public Utilities.
Madison: Public Cervice Commission, 1933 (With Amend-
ments to 1939).
E. ESSAYS AND ADDRESSES
Dinock, Marshall E., MControl Over Administrative Action,1 *
Essays on the Law and Practice of Governmental Adminis
tration, CEarles Gf7 Raines, andHlar shall E'r'Diniock,
editors; Baltimore: The John Hopkins Press, 1935. 287 pp.
Landis, James M., '*The Development of the Administrative
Commission,M an address before the Swarthmore Club of
Philadelphia, February 27, 1937. Included in Gellhorn,
V; 1 Walter,Administrative Law: Cases and Comments.
APPENDIX
APPENDIX A
FORM OF FORMAL COMPLAINT
BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA
(insert name of each complainant))
Complainant, ( NO. ___________ _
YS. ) (To be inserted by
Secretary of the
(insert name of each defendant), ( Commission.)
____________ Defendant^ __
COMPLAINT
The complaint of (here insert full name of each
complainant) respectfully shows:
(1) That (here state occupation and post-office
address of each complainant).
(2) That (here insert full name, occupation and
post-office address of each defendant).
(3) That (here insert fully and clearly the
specific act or thing complained of, together with such
facts as are necessary to give a full understanding of the
situation).
WHEREFORE, complainant asks (here state specifically
the relief desired).
Dated a t___________, California, this____ day of
1 5 4
APPENDIX A ( c o n t i n u e d )
_____________ , 19___.
(Name of aaeh""complainant)
(Name and address of attorney,if any)
STATE OF CALIFORNIA )
( ss.
County of ______________ )
(insert name of one complainant), being first duly
sworn, deposes and says: That he is the complainant in the
action entitled above; that he has read the foregoing
complaint and knows the contents thereof; and that the same
is true of his own knowledge, except as to matters which
are therein stated on information or belief, and as to
those matters he believes it to be true.
Subscribed and sworn to before me this ____ day of
, 19__ .
NOTARY PUBLIC in and for the
County of ___________________
State of California
1 5 5
APPENDIX A ( c o n t i n u e d )
FORM OF ANSWER TO FORMAL COMPLAINT
BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA
(insert name of each complainant), )
Complainant, ( NO.___________________
VS. ) (To be inserted by the
Secretary of the
(insert name of each defendant), ( Commission)
_________ ____________ Defendant,_____)
ANSWER
The above named defendant, for answer to the complaint
in this proceeding, respectfully states:
(l) That (here follow specific denials of such
material allegation of the complaint as are controverted
by the defendant and also a statement of any new matter
constituting a defense. Continue numbering each succeeding
paragraph).
WHEREFORE, the defendant prays that the complaint
be dismissed (or other appropriate prayer).
(Name of defendant)
(Name and™ address of attorney
if any)
1 5 6
APPENDIX A ( c o n t i n u e d )
STATE OF^CALIFOBNIA )
( ss.
County of _______ )
(insert name of defendant), feeing first duly sworn
deposes and says: That he is the defendant in the action
entitled as above; that he has read the foregoing answer
and knows the contents thereof; and that the same is true of
his own knowledge, except as to matters which are therein
stated on information or belief, and that as to those
matters he believes it to fee true.
Subscribed and sworn to before me, this day of
19 .
Notary Public in and for the
County of _______________ _
State of California
1 5 7
APPENDIX A ( c o n t i n u e d )
FORM OF FORMAL APPLICATION
BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA
In the Matter of the Application of )
(here insert name of each applicant) NO.______________
for (here insert desired order, authori-(
zation, permission or certificate, (To be inserted by
thus: "order authorizing issue of ) Secretary of the
stocks and bonds"). Commission)
. (
APPLICATION
The petition of (here insert name of each applicant)
respectfully shows:
1. That applicant is engaged in the business of
(here insert nature of business and territorial extent
thereof).
2. That the post-office address of each applicant
is ________ .
3. That (here insert fully and clearly the facts
required by these rules, and any additional facts which
applicant desires to state.
TOEREFORE, applicant asks that the Public Utilities
Commission of the State of California make its order
authorizing applicant to (here state specifically the
1 5 8
APPENDIX A ( c o n t i n u e d )
action which the applicant desires the Public Utilities
Commission to take).
Dated at ______ , California, this ____ d a y .of
________, 19_.
(Name of each applicant.)
(Name and address of attorney
if any)
STATE OF CALIFORNIA )
( ss.
County o f _____________)
(insert name of applicant), being first duly sworn,
deposes and says: That he is the applicant in the pro
ceeding entitled as above; that he has read the foregoing
application and knows the contents thereof; and that the
same is true of his own knowledge, except as to matters
which are therein stated on information or belief, and that
as to those matters he believes it to be true.
Subscribed and sworn to before me, this ___ day of
19___•
Notary Public in and for the
County of _______________
State of California.
1 5 9
APPENDIX B
SUMMARY OF INFORMAL COMPLAINTS AND DISPUTED BILLS
July 1, 1947 to June 30, 1948*
Classification
Pending,
July 1,
1947
Filed
July 1,
1947 to
June 1,
1948
Closed
July 1,
1947 to
June 1,
1948
Pending,
June 30,
1948
Telephone
San Francisco 66 510 469 107
Los Angeles 59 507 473 93
Water
San Francisco 117 273 347 43
Los Angeles 60 183 194 49
Electric
San Francisco 51 231 244 38
Los Angeles 27 164 156 35
Gas
San Francisco 5 54 52
7
Los Angeles 4 28 29 3
TOTAL
389 1, 950 1, 964 375
* Annual Report, Public Utilities Commission, State of
California, Ninety-Ninth Fiscal Y ear, "July 1, 1 §47 to ""June "35,
1948, p. 22.

Linked assets

University of Southern California Dissertations and Theses

Conceptually similar

PDF

The economic feasibility determination techniques of the Bureau of Reclamation

PDF

State intervention in agriculture: The United States and Iraq

PDF

International Bank for Reconstruction and Development and the Iraqi Development Board

PDF

An analysis of Iraqi government institutions for agriculture, industrial, and mortgage banking

PDF

Trends in municipal government activity for the City of Los Angeles, 1910-1955

PDF

How to maximize the economic efforts of war in real terms

PDF

The role of Federal Trade Commission in regulating false and misleading advertising

PDF

An analysis of some significant problems of assessment associated with the administration of the property tax

PDF

Analysis of Air Force pricing in negotiated procurement

PDF

The control of unemployment insurance payments in California

PDF

An inquiry into the problems and desirability of acreage limitation in the Central Valley Project

PDF

Economic analysis of air cargo

PDF

An analysis of the offsetting forces of capitalism

PDF

The impact of the automatic stabilizers on postwar economic stability

PDF

The "Buy American" Act and the gains from avoiding protective legislation

PDF

The New Zealand economy during the Second World War

PDF

The economic impact of defense expenditure

PDF

The advisability of trade between the United States and Czechoslovakia

PDF

An analysis of the institutional economics of John Rogers Commons

PDF

An analysis of the United States foreign aid program in Europe, 1940-1951

Asset Metadata

Creator Boren, James Harlam (author)

Core Title A comparative study of the administrative procedure of the Public Utilities Commission of the state of California

Degree Master of Arts

Degree Program Economics

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag economics, general,OAI-PMH Harvest,political science, public administration

Language English

Contributor Digitized by ProQuest (provenance)

Advisor Neuner, Edward, Jr. (committee chair), Anderson, William H. (committee member), Phillips, E. Bryant (committee member)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c20-437586

Unique identifier UC11264035

Identifier EP44697.pdf (filename),usctheses-c20-437586 (legacy record id)

Legacy Identifier EP44697.pdf

Dmrecord 437586

Document Type Thesis

Rights Boren, James Harlam

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the au...

Repository Name University of Southern California Digital Library

Repository Location USC Digital Library, University of Southern California, University Park Campus, Los Angeles, California 90089, USA