Citations
- 280 F.2d 31
Full opinion text
TUTTLE, Circuit Judge.
This petition for review attacks the order of the Federal Power Commission denying petitioner the right to collect the difference between its old filed price of gas and the new, but suspended, rate during the period following the period of suspension under Section 4(e) of the Natural Gas Act until the order approving the new rate was made. The basis of the Commission’s denial was petitioner’s failure to file the bond authorized in the Act to secure the repayment of any excess amount collected. None was collected.
Both parties agree that there is here for decision only a single question of statutory construction: Is the filing of the bond by the natural gas company a condition precedent to the becoming effective of the new rate or is the filing of the bond only a condition precedent to the actual collection of the increased rate pending final determination by the Commission of its reasonableness.
Here, petitioner and Orange Grove Oil & Gas Corporation, on January 26, 1955, filed with the Commissioner new contracts negotiated with their sole purchaser, Trunkline Gas Company, providing for a price of 120 per MCF, plus three-fourths of increased taxes, plus 1/4$ per MCF for dehydration. The Commission suspended the rates until April 26, 1955. The proceedings were not concluded on that date, so Associated and Orange Grove each filed “motions” with the Commission under the provisions of the act providing that in such circumstances, “on motion of the natural-gas company making the filing, the proposed change of rate * * * shall go into effect.”
Thereupon, the Commission, after five months of consideration issued its order entitled “Order Making Effective Proposed Rate Changes Upon Filing of Bond to Assure Refund of Excess Charges.” This order embodied the following finding:
“The Commission finds: It is appropriate in carrying out the provisions of the Natural Gas Act to prescribe terms and conditions with respect to refunds by applicant as hereinafter provided.” (Emphasis added.)
It then ordered, so far as relevant to the discussion here:
“(A) Upon execution by Applicant of the corporate bond described in paragraph (D) below, and acceptance thereof, evidenced by letter addressed to Applicant by the Secretary of the Commission, the rates, charges, and classifications set forth in Applicant’s FPC Gas Rate Schedule No. 5 shall be effective as of April 26, 1955, subject to further orders of the Commission in this proceeding.
“(B) Applicant shall refund to those entitled thereto the portion of the increased rates and charges made effective as of April 26, 1955, found by the Commission in this proceeding not justified, with interest at the rate of 6% per annum from the date of payment to Applicant until refunded; shall bear all costs of any such refunding * * *.
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“(D) * * *
“Now, Therefore, if Applicant, its successors and assigns, in conformity with the terms and conditions of the order adopted on September 14, 1955, by the Federal Power Commission, In the Matter of Associated Oil & Gas Co. Docket No. G-8519 shall: (1) well and truly repay at such times and in such amounts, to the persons entitled thereto, and in such manner as may be required by the final order of the Commission in said proceeding, subject to court review thereof, any portion of such rates and charges collected by Applicant after April 26, 1955, as such final order may find not justified, together with interest thereon at the rate of six (6) per cent per annum from the date of payment thereof to Applicant until refunded; and (2), comply otherwise with the terms and conditions of said order adopted September 14, 1955; and with provisions of the Natural Gas Act relating thereto, then this obligation shall be terminated, otherwise to remain in full force and effect.” (Emphasis added.)
By similar order the Commission provided for a bond to be made by Orange Grove. Petitioners were unable to make the bond, and they did not collect the increased price. Orange Grove made the bond and they collected the increased price retroactively to April 26, 1955. Subsequently, on November 1, 1957, pursuant to a new filing of the same contract rate of 12^, the Commission permitted the higher rate to be collected by Associated’s giving its “undertaking” to make refunds. Thus, Associated began on November 1, 1957, to collect from Trunkline at the new rate, which it continued to do until final approval of the 12