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Cities Service Gas Co. v. Federal Power Commission

July 30, 1949

CITIES SERVICE GAS CO.
v.
FEDERAL POWER COMMISSION ET AL.



Huxman

Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge, delivered the opinion of the court.

This matter comes on at this time upon the petition of M. D. Lightfoot and twelve others named with him in the petition as a class action for the benefit of all the ultimate gas consumers of Springfield, Missouri, served by the City Utilities of the City of Springfield, Missouri, a municipally owned gas distributing company, for leave to intervene in this action.*fn1

The matter arises in the following way. Pursuant to extensive hearings, the Federal Power Commission issued an order July 28, 1943, directing the Cities Service Gas Company, an interstate wholesaler of natural gas to reduce its rates for or in connection with its transportation and sale of natural gas in interstate commerce for resale for ultimate public consumption, effective as of September 1, 1943. After exhausting its administrative remedies, Cities Service instituted this action for a review of the Commission's order and requested a stay of the order pending a determination of the issues. A stay order was entered requiring Cities Service, however to pay monthly into the First National Bank of Denver, the depository selected by the court, the amount representing the difference between the old rate and the new rate ordered by the Commission pending the determination of the action. A further condition of the order was that.

"Upon the final determination of this proceeding on review, such moneys shall be paid out in such manner and in such amounts as this court by further order shall direct, to the persons finally adjudged in this review proceeding to be entitled thereto and in accordance with the final adjudication with respect to the Commission's order. And in the event the amounts so deposited shall be insufficient to satisfy fully the amounts adjudged to be refunded, the Cities Service Gas Company shall deposit sufficient additional moneys to satisfy the refunds ordered."

On April 30, 1946, this court affirmed the order of the Commission (155 F.2d 694). The petition of Cities Service to the Supreme Court for certiorari was denied on November 12, 1946, 329 U.S. 773, 67 S. Ct. 191, 91 L. Ed. 664, and a rehearing also was denied, 329 U.S. 832, 67 S. Ct. 489, 91 L. Ed. 705.

Thereupon new schedules of rates were filed by Cities Service in compliance with the order of the Commission and were approved by the Commission on May 2, 1947, effective as to all bills regularly rendered on and after September 1, 1943. Thereafter on July 3, 1947, this court, after notice to all parties, including distributors who purchased gas from Cities Service, towns and communities served by them, entered an order determining the total amount of excess charges and directing a refund thereof to the ultimate consumers, excepting a small number of distributors, including Springfield. The Board of Public Utilities of Springfield filed a claim for all the refund due from the sale of gas to the distributing company serving Springfield.

Pursuant to the order of the court, the Master, appointed by it, on August 4, 1947, filed a plan for the distribution of the impounded funds. The consideration of the proposed plan was set for hearing at 10 o'clock A.M. on August 19, 1947. Notice was widely published in newspapers throughout the refund area directed "To all parties herein; to all distributing companies and municipal 'city-gate' purchasers of natural gas from Cities Service Gas Company; and all other persons having or claiming by, through or under any of the parties hereto, or any of the 'city-gate' purchasers of natural gas, or otherwise, any right or interest in this cause, or in the funds heretofore or now impounded, or in the disposition and distribution of said funds or any part thereof or in the manner or method of such disposition and distribution." In addition an order was entered August 4, 1947 setting the claims of interest filed by several municipalities and distributing companies, including the claim of Springfield, for hearing and determination on the same date.

At the August 19, 1947 hearing, the plan of the Master was approved and a number of claims, including the claim of Springfield, were heard and determined. Jurisdiction was reserved of the cause, the parties, and the impounded funds for the purpose of such other and further orders and decrees as might be necessary, suitable, or appropriate in the premises. Concerning the Springfield claim, an order was entered on that date with no reservation as to jurisdiction, as follows:

"5. The claims of the City Utilities of the city of Springfield, Missouri, and Wann, Oklahoma, hereby are granted, the amounts of refunds allocable to the respective 'city-gate' of each of such cities hereafter shall be fixed by order of Court."

Subsequent verification established that the excess charges on purchases made by the Springfield Gas and Electric Company amount to $290,451.91, and by City Utilities of Springfield to $512,914.46, totaling $803,366.37, the amount which both the ultimate consumers of Springfield and Springfield claim.*fn2

Following the entry of the order awarding the total amount due for distribution in the Springfield area to Springfield, petitioners filed a timely action for a declaratory judgment in the Circuit Court of Christian County, Missouri, againt the City of Springfield, Missouri and members of the Board of Public Utilities of that City, seeking a judgment of the court declaring that they, as the ultimate consumers, were entitled to such impounded funds. As a result of the institution of that action, this court has retained the funds in question in the depository of the court pending the final determination of the issues therein.

A stipulation of facts was prepared by the parties and filed in that court, issues were joined, and the action was ready for trial when the Supreme Court of the United States granted certiorari in Federal Power Commission v. Interstate Natural Gas Company, et al. Thereupon further proceedings were suspended in the state court pending the decision of the Supreme Court in the Interstate Natural Gas Company case, which opinion was rendered on April 18, 1949, 336 U.S. 577, 69 S. Ct. 775. Shortly thereafter the plaintiffs in that action filed this motion for permission to intervene, together with their intervening petition and motion for summary judgment on the pleadings. They take the position that they should be permitted to intervene because under the decision of the Supreme Court in the Interstate Natural Gas Company case, supra, it is the duty of this court to determine the ultimate ownership of the impounded funds and to make distribution thereof.

In view of the conclusion we have reached on the petition for intervention, it will not be necessary to refer to or dispose of ...


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