UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
November 25, 1942
HARTFORD ELECTRIC LIGHT CO.
FEDERAL POWER COMMISSION.
On Petition for Review from an Order of the Federal Commission.
Before L. HAND, CLARK, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
1. The commission, on June 16, 1936, made its Order No. 42, adopting a Uniform Systen of Accounts for Public Utilities and Lecensees, subject to the provisions of the Federal Power Act, 16 U.S.C.A. § 791A et seq. By order dated May 11, 1937, the Commission directed all public utilities subject to its jurisdiction under that Act to submit certain data, statements and information concerning their accounts, records and properties. After notice and hearing, as required by the Act, the Commission, by orders dated February 25, 1941, and October 21, 1941, purporting to be entered pursuant to sections 208 and 301(a) of the statute, directed petitioner, Hartford, to comply with Order No. 42 and the order of May 11, 1937. Petitioner asks this court to review and set aside the orders of February 25, 1941 and October 21, 1941, on the ground that, under the Act, petitioner is not subject to the Commission's jurisdiction in any respect.*fn2
It is clear, and petitioner so concedes, that, if petitioner is a "public utility," as that term is defined in section 201 (e), then those orders are vaild.*fn3 For section 208, found in Part II of the Act, and section 301 (a), found in Part III, each applies to "every public utility."*fn4 And section 201 (e), found in Part II, reads, "The term 'public utility' when used in this Part or in the Part next following [sections 824- 825r of this title] means any person who owns or operates facilities subject to the jurisdiction of the Commission under this Part [sections 824-824h of this title]."*fn5
The pivotal question is, then, whether petitioner owns or operates any facilities subject to the Commission's jurisdiction under Part II.*fn6 For answer to that question, we must turn to Section 201 (b), contained in Part II, which reads as follows: "The provisions of this Part [sections 824-824h of this title] shall apply to the transmission of electric energy in interstate commerce and to the sale of electric energy at wholesale in interstate commerce, but shall not apply to any other sale of electric energy or deprive a State or State commission of its lawful authority now exercise over the exportation of hydroelectric energy which is transmitted across a State line. The Commission shall have jurisdiction over all facilities for such transmission or sale of electric energy, but shall not have jurisdiction, except as specifically provided in this Part and the Part next following [sections 824-824r of this title], over facilities used for the generation of electric energy or over facilities used in local distribution or only for the transmission of electric energy in intrastate commerce, or over facilities for the transmission of electric energy consumed wholly by the transmitter."
2. The facts pertinent to this review may be summarized as follows:
Petitioner is a Connecticut corporation engaged in the business of generating, transmitting, distributing and selling electric energy in and near Hartford, Connecticut. It owns a steam-generating plant in Hartford. For some ten years before the President approved the Act, petitioner was a member of a voluntary arrangement for a "Pool" of electric energy known as the Connecticut Valley Power Exchange. The Exchange consisted of Massachusetts and Connecticut electric utility companies and was formed and operated for the purpose of exchanging electric energy, "at incremental cost," between the members. Through the operations of this Exchange, electric energy generated by petitioner was transmitted to, and sold to, customers in Massachusetts. Among the facilities used by petitioner in these transmissions of energy through the Exchange were these: (a) Facilities, owned by petitioner, between the connections on its generatings in its generating plant and a substation immediately outside its generating plant. (b) That substation, owned by petitioner. (c) A transmission line, owned and operated by the Connecticut Power Company, connecting the substation with the facilities of a Massachusetts member of the Exchange.
In 1936, petitioner withdrew from the Exchange, Connecticut Power then succeeded it as a member of the Exchange, and petitioner then sold to Connecticut Power the substation and the facilities from its bushing s on the wall of its generating plant to the substation. Since then Connecticut has owned and operated these facilities. Petitioner retained ownership and operation of the facilities in its generating plant, and between its generators and those wall bushings. The generators are connected to a "Main Bus" inside the generating plant. Numerous circuits connected to that bus are used solely in intrastate distribution and transmission; but there are three such circuits which lead through the wall bushings of the plant building to the substation; inside the building these circuits to the wall bushings are owned by petitioner, while outside they are now owned by Connecticut Power.
The 1936 sale of assets to Connecticut Power was admittedly made in the hope of escaping the Commission's jurisdiction. After that sale to Connecticut Power, no physical change was made in the transfers of energy under the Exchange arrangement, and the physical plan of operations of the Exchange continued as theretofore. Connecticut Power supplies to other Exhange members energy which it receives principally from petitioner, and receives from them energy, a considerable part of which it supplies to petitioner. Financial benefits, by way of savings, which had formerly accrued to petitioner as a member of the Exchange, now are received and retained by Connecticut Power. It is admitted by petitioner that it knows that the amount of energy it sells to Connecticut Power exceeds the latter's load requirements for its needs in the State of Connecticut; that such excess is utilized by Connecticut Power in connection with the operations of the Exchange; that, in such operation, energy is transmitted across the State boundary to Massachusetts, where it is used (except for losses) for sales to ultimate consumers; and that the supply of energy by petitioner is essential to the operations of the Exchange.*fn7
Petitioner has a contract with Connecticut Power which obligates petitioner to supply Connecticut Power the firm capacity, up to a designated limit, required by Connecticut for its sales of energy to intrastate customers in a designated area. Outside its contract commitments, petitioner also sells Connecticut Power surplus energy. Were it not for this surplus energy thus sold by petitioner to Connecticut Power, the latter could not transmit energy under the Exchange arrangement. Although in this way energy generated by petitioner is transmitted and resold in Massachusetts, petitioner never sells any designated block of energy for specific interstate use. Connecticut Power may either distribute a particular purchase to its customers or put it in the transmission line to Massachusetts. Petitioner has no interstate energy business except in so far as its sales of energy to Connecticut Power transmitted to Massachusetts may, as " a matter of law" under the Act, constitute interstate transactions by petitioner.
Petitioner owns 9.19% of the common stock of Connecticut power. Four of the eleven directors of petitioner are among the fourteen directors of Connecticut Power, and two of the principal officers of the two companies are the same.
Through the three circuits, above mentioned, which lead from petitioner's generating plant to the substantion owned by Connecticut Power, 166,144,000 kilowatt hours of electric energy from petitioner's generating plant were supplied to Connecticut Power in the first nine months of 1939, of which 97,932,000 were transmitted to Massachusetts. From June 1 to September 30, 1939, approximately a third of the net generation at petitioner's plant was sent to Massachusetts.
3. Section 201(d) defines the "sale of electric energy at wholesale" to mean "a sale of electric energy to any person for resale." Petitioner sells electric energy to Connecticut Power. The Exchange arrangements result in resales, whether they be regarded as sales to the Exchange*fn8 and resales by the Exchange, or as sales by the Exchange as agent for the members or as an agency whereby each member acts as agent for the others in selling the energy supplied by the others. For the inescapable fact is that energy sold by petitioner to Connecticut Power is resold to consumers in Massachusetts. There can be no doubt that petitioner is making sales at wholesale, as that term is defined in the Act.
Petitioner concedes that Congress has the constitutional power to regulate the sales transactions in which it is engaged, but argues that Congress has not exercised that power in this Act, because it has used the expression "in interstate commerce," a phrase, says petitioner, not sufficiently comprehensive to cover such transactions.*fn9 A similar contention was made in Peoples Natural Gas Co. v. Federal Power Commission, App. D.C., 127 F.2d 153, 155, in which a gas company had sold natural gas in Pennsylvania to another company which immedicately transported the gas to New York, where it sold it to others for resale. The court rejected the argument, stating that the words "sale in interstate commerce" aptly described such a transaction.*fn10 We adopt that court's excellent discussion of the pertinent authorities. See also Shafer v. Farmers' Grain Co., 268 U.S. 189, 199, 45 S. Ct. 481, 485, 69 L. Ed. 909, andFlanagan v. Federal Coal Co., 267 U.S. 222, 225, 45 S. Ct. 233, 69 L. Ed. 583 (in both of which the court used the phrase "in interstate commerce"). Cf. Public Utilities Commission v. Attleboro Co., 273 U.S. 83, 47 S. Ct. 294, 71 L. Ed. 549.
We are not to be taken as saying that a mere sale by A, within a state, to B, who ships the commodity in interstate commerce, would necessarily be a sale in interstate commerce; the character and extent of the seller's knowledge of the purpose of the purchaser to ship across state lines may be important.Petitioner, in support of its position that it has insufficient knowledge of the transmission to Massachusetts of the energy purchased from it by Connecticut Power, leans heavily on Superior Oil Co. v. Mississippi, 280 U.S. 390, 50 S. Ct. 169, 170, 74 L. Ed. 504, a case which, as the opinion shows, turned on its peculiar facts and which, as the court said, was "near the line."*fn11 There in holding that the intrastate sales of gasoline did not become sales in interstate commerce, so as to relieve the seller of taxes in the state where the sale took place, merely because the buyers transported the gasoline to another state for resale, the court, in an opinion by Holmes, J., said: "A distinction has been taken between sales made with a view to a certain result and those made simply with indifferent knowledge that the buyer contemplates that result. Louisville & Nashville R.R. Co. v. Parker, 242 U.S. 13, 14, 37 S. Ct. 4, 61 L. Ed. 119; Kalem Co. v. Harper Bros., 222 U.S. 55, 62, 32 S. Ct. 20, 56 L. Ed. 92, Ann.Cas. 1913A, 1285." The citation of the Kalem case (in which the opinion was also by Holmes, J.) illuminates the meaning of "indifferent knowledge"; for, in that case, it was said that "mere indifferent supposition or knowledge on the part of the seller that the buyer of spirituous liquor in contemplating such unlawful use is not enough to connect him with the possible unlawful consequences, * * *but * * * if the sale was made with a view to the illegal resale, the price could not be recovered." [222 U.S. 55, 32 S. Ct. 21, 56 L. Ed. 92.]
The instant case, far more closely resembles the Kalem case than the Superior Oil case. For the petitioner makes its sales to Connecticut Power with no mere "indifferent knowledge" as to what Connecticut Power contemplates. Because of petitioner's former membership in the Exchange, because it has directors and officers interlocking with Connecticut Power and owns a sizable block of Connecticut Power's stock, petitioner cannot possibly lack knowledge of the fact that the sales by it to Connecticut Power are indispensable to those Exchange arrangements which culminate in the transmission to, and sale of, considerable quantities of electric energy in Massachusetts. Indeed, the record shows that petitioner openly admitted that it has such knowledge. Petitioner, therefore, is fully aware that some of such energy is unavoidably destined by the buyer for interstate use. Cf. Louisville & Nashiville R.R. Co. v. Parker, supra.
The facts here are, then, ample to show such knowledge as is required; but we are not to be taken as saying that less facts would not be sufficient. We have not based our ruling on "affiliation" between the companies, or on the thesis that Connecticut Power is an agent of petitioner. Nor have we considered it of any importance that petitioner, in 1936, sold assets to Connecticut Power and took other steps to escape the Commission's jurisdiction; to make such an attempt is not unlawful, is indeed not immoral - not even if it fails.
It is immaterial that the sales are "indirect" in that they are sold within the state to another company for transmission and sale outside the state, or that the quantities of energy sold are variable or small (relative to the seller's total output) or are part of petitioner's "surplus" production;*fn12 or that the sales are made at petitioner's place of business;*fn13 or that petitioner sells without prior obligation to do so.*fn14 Nor is it of significance that the energy, in the course of transmission, passes through Connecticut Power Company's transformers where the voltage is changed; the nature of electric energy and of its transmission is such that we regard as inapposite cases (like Arkadelphia Co. v. St. Louis, S.W. Ry. Co., 249 U.S. 134, 151, 152, 39 S. Ct. 237, 63 L. Ed. 517) where shipments are interrupted for a considerable period during which the goods are processed.*fn15
We conclude that the Commission correctly held that petitioner is engaged in "the sale of electric energy at wholesale in interstate commerce."
4.Petitioner, however, contends that, even if it is engaged in interstate wholesale sales, still it is not a "public utility," and, therefore, the Commission's orders are invalid. In brief, its position is (a) that a company, although engaged in making such interstate sales, is not a "public utility," subject to the Commission's jurisdiction, unless it has facilities for "transmission in interstate commerce," and (b) that petitioner has no such facilities.
More in detail, its contention is as follows: (1) All facilities of such a company are rigidly divided into those for "transmission" and those for "generation" of electric energy. (2) Petitioner has no facilities for transmission in interstate commerce; accordingly, all its facilities used in connection with its interstate wholesale sales are "generation" facilities. (3) The Commission has no jurisdiction under any section found in Part II, over "generation" facilities. (4) It follows that the Commission has no jurisdiction, under Part II, over any of petitioner's facilities. (5) Therefore, petitioner is not a "public utility," as that term is used in §§ 208 and 301(a) pursuant to which the Commission's orders were entered, since that term, for the purposes of those sections, is defined, in § 201(e), as a company which owns or operates facilities subject to the Commission's jurisdiction under Part II. (6) The result, says petitioner, is that the Commission's orders here under review are invalid.
The essential points in this contention are the assertions (1) that in no portion of Part II is the Commission given jurisdiction over generation facilities; (2) that all facilities of such a company are either for generation or for transmission, and that petitioner has no interstate transmission facilities, and no facilities used in connection wilth its interstate wholesale sales except its generation facilities. If the petitioner errs as to either of these two assertions, its entire contention falls. We hold that it does so ree, for the following reasons:
Even if we assume that generation facilities are not wilthin the Commission's jurisdiction under § 201(b) or any other portion of Part II, and also that petitioner has no facilities for interstate transmission, still petitioner's contention is untenable: Section 201(b) confers jurisdiction over not only facilities (1) for interstate transmission but also - and disjunctiuely - over facilities (2) for interstate wholesale sales . If the commission has no jurisdiction under § 201(b) over generation facilities, then that part of that section conferring jurisdiction over facilities for interstate wholesale sales becomes meaningless - unless there is a third category of facilities, i.e., those used neither for transmission nor for generation. We must, therefore, look for that third category. We find it in petitioner's corporate organization, contracts, accounts, memoranda, papers and other records, in so far as they are utilized in connection with such sales.*fn16
It should be noted that the word "facilities" is generally regarded as a widely inclusive term, embracing anything which aids or makes easier the performance of the activities involved in the business of a person or corporation. Cf. Nekoosa-Edwards Paper Co. v. M. St. P. & S.F. Ry. Co., 217 Wis. 426, 259 N.W. 618, 620; Fraters v. Keeling, 20 Cal.App.2d 490, 67 P.2d 118, 199; Funk & Wagnalls Dictionary (1913 Ed.) 888.
5. A majority of the court holds that there is also the following alternative ground for rejecting petitioner's contention: Even if we assume that petitioner has no facilities for interstate transmission, and that petitioner's books, records, etc. are not facilitees for wholesale sales in interstate commerce, so that petitioner has nothing except facilities for generation, still petitioner's contention is unsound. For we consider that generation facilities, where used as aids to such sales, are within the Commission's jurisdiction under § 201(b).
As previously noted, that subsection specifically provides that "the Commission shall have jurisdiction over all facilities" eilther for (1) "transmission of electric energvy in interstate commerce" or (2) "the sale of electric energy at wholesale in interstate commerce." If that sentence, so providing, stopped there, it would be obvious lthat the Commission has jurisdiction over generation fazcilities when used in connection with interstate wholesale sales. The sentence, however, continues with a clause (which, for convenience, we shall call the "but" clause) reading: "but shall not have jurisdiction, except as specificalluy provided in this Part and the Part next following [sections 824 - 825r of this title], over facilities used for the generation of electric energy or over facilities used in local distribution or only for the transmission of electric energy in intrastate commerce, or over facilities for the transmission of electric energy consumed wholly by the transmitter." This "but" clause, petitioner argues, reduces the authority conferred on the Commission over "all facilities" for "the sale * * * at wholesale in interstate commerce," in the earlier part of the sentence, by excluding "facilities used for the generation." To this argument there are several answers:
(a) In the preceding subsection, 201(a), Congress "declared" that "* * * Federal regulaztion of matters relating to generation to the extent provided in this Part and the Part next following [sections 824 - 825r of this title] * * * is necessary in the public interest." The legislative history of the Act also weighs heavily against petitioner's assertion. As that history is excellently summarized in Jersey Central Power & L. Co. v. Federal Power Commission, supra, we shall do no more than to quote the following from the statement of the House Conferees accompanying the Conference Report:*fn17 "The Senate bill in Section 210(a) contained a somewhat more lengthy declaration of policy than the House Amendment, the only material difference being that the House Amendment contained no reference to 'generation' of electric energy whiclh appeared in the Senate Bill. The conference substitute follows the language of the House Amendment but inserts a clause relating to generation to the extent regulation thereof is provided in this Part and the Part next following. The House Amendment and Conference substitute also makes reference to the 'sale of electric energy at wholesale in interstate commerce' which reference did not appear in the Senate bill. The same general differences between the Senate bill and the House Amendment has been followed with a clarifying phrase added to remove any doubt as to the Commission's jurisdiction over the facilities used for the generation and local distridution of electric energy to the extent provided in other sections of this Part and the Part next following."
Moreover among the facilities descrided in the "but" clause of § 201 (b), are those used "only" for the transmission * * * in intrastate commerce"; as such facilities could not possibly be among those used for interstate transmission or interstate wholesale sales, the "but" clause becomes foolish if interpreted as carving out of the authority granted in the earlier part of the same sentence the facilities described in the "but" clause. Such a foolish interpretation is avoided by giving effect to a phrase in the "but" clause, i.e., " except as specifically provided in this Part or the Part next following [sections 824 - 825r of this title]." The "but" clause then shows up not as one reducing jurisdiction but as az negatively worded confirmation of the Commission's jurisdiction, in certain circumstances, over the facilities mentioned in the "but" clause. In other words, the "but" clause is to be construed as if it read: "Wherever it is so specifically provided in Parts II and III, the Commission shall have jurisdiction over the facilities used for generation, for local distridution, for intrastate transmission, etc."
Under that interpretation, the Commission, under § 201 (b), has jurisdiction of generation facilities when used in connection with wholesale interstate sales, because jurisdiction of facilities for such sales is "specifically provided" in that section. Congress, we think, intended to exempt generation facilities when not used for interstate purposes because, when not so used, they are intrastate facilities; accordingly, when not so used, they are grouped, in the "but" clause, with other non-interstate facilities, i.e., facilities used in local distributionj or for intrastate transmission.
Regarding the "but" clause as an exception, and keeping in mind the obvious purpose of Congress, disclosed in the legislative history, to see to it that there was effective regulation of interstate wholesale sales of electrical energy, we consider as pertinent the "elementary rule requiring that exceptions from a general policy which a law embodies should be strictly construed * * * ." Spokane & Inland R.R. v. United States, 241 U.S. 344, 348, 350, 36 S. Ct. 668, 671, 60 L. Ed. 1037; cf. Piedmontl & Northern Ry. v. I.C.C., 286 U.S. 299, 311, 312, 52 S. Ct. 541, 76 L. Ed. 1115; United States v. McElvain, 272 U.S. 633, 639, 47 S. Ct. 219, 71 L. Ed. 451.
We note that the Natural Gas Act, U.S.C.A. Title 15, § 717(b) provides that that Act shall apply to the "transportation" of natural gas "in interstate commerce" or to the "sale in interstate commerce of natural gas for resale"; the same sentence contains a "but" clause reading: "but shall not apply * * * to the local distribution of natural gas or to the * * * production or gathering of natural gas."*fn19 Yet, in People's Natural Gas Co. v. Federal Power Commission, supra, a company engaged in production of natural gas, but not in its interstate transportation, was held to be subject to the Act because, in the State of Pennsylvania, it sold gas to another company which transported the gas to another state for resale.
The point is that it is not as such that the generation facilities are subject to the Commission's jurisdiction under § 201(b), but as facilities used in the business of knowingly selling electric energy wholesale in interstate commerce. It is the fact of petitioner's knowledge which should dissipate the apprehension expressed in the brief of amicus curiae that the result of a decision sustaining the Commission in this case "will be to bring under the Commission's jurisdiction every generating company which generates any electric energy which finds its way into interstate commerce." We are not holding, nor did the Commission hold, that the Act has "the effect of bringing all owners of generating facilities" with that jurisdiction.*fn18
5a. The Commission argues that there is an additional ground for holding that it has "jurisdiction" under § 201(b). Since we have held that it has "jurisdiction," for the reasons heretofore given, we shall not consider that argument but merely note that it runs as follows: In Utah Power & L. Co. v. Pfost, 286 U.S. 165, 181, 52 S. Ct. 548, 552, 76 L. Ed. 1038, the court differentiated between generation and transmission, stating that transmission "begins * * * definitely at the generator, at which point measuring appliances can be placed and the quantum of electrical energy ascertained with practical accuracy." As appears from our summary of the facts in the instant case, petitioner owns and operates facilities connecting its generators with the "bus," and circuits connected with that "bus" which lead, through bushings in the wall of petitioner's generating plant, to the substation owned by Connecticut Power Company; all those connections, the bus, and that part of the circuits inside the petitioner's generating plant, are owned by petitioner. The Commission argues that those facilities, under the Pfost case, are transmission facilities and, as the energy sold in Massachusetts passes (with petitioner's knowledge) through those facilities, they are "facilities * * * for the transmission of electric energy in intrastate commerce," and are within the Commission's jurisdiction under § 201(b). Petitioner argues that such facilities are classified in the Commission's accounting rules as part of a generating plant; but the Commission replies that such an accounting classification cannot be controlling when the question, as here, is one of jurisdiction. Petitioner also argues that these facilities, even if for transmission, are, relatively, so small in extent that they cannot be the basis of jurisdiction; the Commission answers that in Jersey Central Power & L. Co. v. Federal Power Commission, 3 Cir., 129 F.2d 183, jurisdiction, under § 201(b), was held to be properly based on a transmission line which was but seven-eighths of a mile in length.
6. Petitioner, however, argues that, regardless of al other consideration, Congress cannot have intended that the Commission should have jurisdiction over any of petitioner's facilities because of the preamble of the Act, § 201(a) which reads as follows: "It is hereby declared that the business of transmitting and selling electric energy for ultimate distribution to the public is affected with a public interest, and that Federal regulation of matters relating to generation to the extent provided in this Part and the Part next following [sections 824 - 825r of this title] and of that part of such business which consists of the transmission of electric energy in interstate commerce and the sale of such energy at wholesale in interstate commerce is necessary in the public interest, such Federal regulation, however, to extend only to those matters which are not subject to regulation by the States."
On the basis of the closing words of that section, two arguments are advanced. The first (as we understand it) runs thus: The Connecticut Commission asserts that it, absent a federal statute, has complete jurisdiction over all petitioner's facilities and activities; and perhaps, if the question were to arise today, the Supreme Court would hold that, absent federal legislation, such a State Commission can constitutionally exert such jurisdiction; accordingly, the last phrase in § 201(a) should be read as depriving the Federal Commission of jurisdiction.
With that suggestion, we cannot agree. For, in ascertaining the legislative purpose, we must read the legislation in the light of the views of Congress at the time of its enactment.*fn19 Whatever may be the doctrine today (a matter we need not consider), it is clear, from the legislative history, that, when this Act was in Congress, wholesale interstate sales were, even in the absence of Federal legislation, deemed to be beyond State regulatory powers, under Public Utilities Commission v. Attleboro, 273 U.S. 83. Yet petitioner would have us adopt an interpretation of the Act which would deprive the Federal Commission of jurisdiction over the very kind of sale which, under the Attleboro case, would then have been held not to be subject to state regulation although one of the chief purposes of the Act was to close just that regulatory gap.*fn20
Petitioner also seems to argue that, because of the closing words of § 201(a), the Federal Commission is denied jurisdiction over any facilities which are, in part, subject to regulation by any State, and that, since the State of Connecticut, through a State Commission, regulates, in part, all petitioner's facilities, Congress must be understood as intending that they should not be within the regulatory power of the Federal Commission. That suggestion is without merit. And especially so with reference to accounts, records and the like. For Congress obviously contemplated that there would, in many cases, be both federal and state regulation. Thus, in § 301(a), after conferring on the Federal Commission authority over such matters, Congress said, "Provided, however, That nothing in this Act [chapter] shall relieve any public utility from keeping any accounts, memoranda, or records which such public utility may be required to keep by or under authority of the laws of any State." Thus a company like petitioner may be required to keep its accounts, etc., in two distinct forms, one pursuant to the orders of the Federal Commission and the other in accord with State requirements.*fn21
Section 209(b) unmistakably recognizes the likelihood of duality in regulation, and is designed to mitigate its effects, by providing for "conferences" and "joint hearings" by the Federal and State Commissions "regarding the relationship between rate structures, costs, accounts, charges, practices, classifications, anjd regulations of public utilities subject to the jurisdiction of such State commission and of the [federal] Commission."*fn22
Other sections of the Act are also pertinent. For instance, petitioner's suggested interpretation of the last words of § 201(a) would render § 204 partly superfluous and partly inoperative. For Section 204(a) provides taht no public utility shall issue securities without the authorization of the federal commission, while § 204(f) exempts from this requirement a utility which is both "organized and operating" in a State under whose laws its security issues are regulated by a State Commission. The suggested interpretation of 201(a) would make § 204(f) unnecessary; and it would nullify § 204(b) which gives the federal Commission jurisdiction over the security issues of a utility "organized" but not also "operating" in a State whose Commission is empowered by State law to regulate such securities.*fn23
We cannot agree that Congress intended by the preamble that interstate transactions, which the Attleboro case had held to be beyond the regulatory power of the States, should be exempt from federal regulation where they are carried on by facilities which are also used for intrastate commerce.
Moreover, petitioner's suggested interpretation gives undue weight to a preamble clause worded as generally as § 201(a). Cf. Carter v. Carter Coal Co., 298 U.S. 238, 280, 56 S. Ct. 855, 80 L. Ed. 1160; N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 129, 130, 57 S. Ct. 615, 81 L. Ed. 893, 108 A.L.R. 1352.*fn24
For that reason, we also reject the following suggestion: Although, as already noted, § 201(b), disjunctively, confers jurisdiction over interstate transmission or interstate wholesale sales, yet, it is said, this disjunction must be disregarded because the preamble refers, conjunctively, to "the business of transmitting and selling electric energy"; this reference, it is urged, restricts the application of § 201(b) to a "person" which is in the joint business of transmitting and selling in interstate commerce. It will be noted that the result would be to exempt a corporation engaged in transmitting, but not selling at wholesale, in interstate commerce, a result which the legislative history shows to be in flat contradiction of the legislative purpose, for it would relieve such a company from both State and Federal regulation. The preamble of the Natural Gas Act, U.S.C.A. Title 15, § 717(a), speaks in similar conjunctive manner of the "business of transporting and selling natural gas," while § 717(b) - like 201(b) of the Federal Power Act - makes the Gas Act applicable, disjunctively, to "such transportation or sale." In the People's Natural Gas case, supra, the court gave effect to the disjunctive treatment in § 717(b), paying no attention to the conjunctive description in the preamble.
7. We are not unmindful of the doctrine of such cases as Federal Trade Commission v. Bunte Brothers, Inc., 312 U.S. 349, 61 S. Ct. 580, 582, 85 L. Ed. 881; Palmer v. Massachusetts, 308 U.S. 79, 83, 84, 60 S. Ct. 34, 84 L. Ed. 93, and A. A. Kirschbaum v. Walling, Administrator, 316 U.S. 517, 62 S. Ct. 1116, 86 L. Ed. , i.e., that, having "due regard for a proper adjustment of the local and national interests in our federal scheme," [312 U.S. 349, 351], 61 S. Ct. 580, 582, 85 L. Ed. 881, the courts should discountenance " in roads by implication on state authority," [308 U.S. 79, 84, 60 S. Ct. 37, 84 L. Ed. 93], and that a Congressional intent to extend federal regulation should not be assumed to exist unless Congress is "reasoanbly explicit" in stating such a purpose. We think the Congressional purpose to vest the Commission with the powers it here asserts does not rest upon mere implication and that the Act and its legislative history make that purpose, to say the least, "reasonably explicit." There is no basis for the fear expressed in the brief of amicus curiae that a decision sustaining the Commission's orders will involve grave encroachments "upon the jurisdiction of state regulatory authorities."
8. The facts and the meaning of the statute are sufficiently clear so that, in arriving at our decision, we have not deemed it necessary to consider whether the doctrine of Gray v. Powell, 314 U.S. 402, 413, 62 S. Ct. 326, 86 L. Ed. 301,*fn25 is applicable here, i.e., that the "experienced judgment" of the Commission, in its interpretation of the statute as applied to the facts, must be given great weight.
9. We have discovered no evidence in the record which shows that the findings of fact made by the Commission, necessary to support its orders, are not based on substantial evidence. We cannot, therefore, agree with petitioner that the Commission was under a duty to make further findings of uncontested facts, as requested by petitioner, which, to quote petitioner's brief, related to "legal criteria rejected" - and we hold correctly rejected - "by the Commission." Such a duty no more rests upon the Commission than it does upon a federal trial judge, sitting without a jury, who is also required to make findings.
10. Petitioner assigns as error the failure of the Commission to include in the record before us any trial examiner's report. No such report was ever served on petitioner and petitioner based no arguments on the contents of such a report either here or before the Commission. So far as appears from its findings and legal conclusions, the Commission did not rely upon any such report, nor is it required to do so by the Act. We see no reason why, in the circumstances, that report, if there be one, should be considered by us. Cf. N.L.R.B. v. Air Associates, 2 Cir., 121 F.2d 586; Kidder Oil Co. v. Federal Trade Commission, 7 Cir., 117 F.2d 892, 902, is not in point;*fn28 and we are not prepared to say that we would follow it even if the facts were identical.
The petition is denied and the orders of the Commission are affirmed.
L. HAND, Circuit Judge (concurring).
I agree that there may be "facilities" for selling electric energy which are neither the apparatus which generates it, nor the wires which carry it to where it is used. What such selling "facilities" include it would be hard to say; but they must at least go so far as to comprise the selling organization with its paraphernalia of records and the like, and that is enough to dispose of this appeal. This reading is consonant with the purpose expressed in § 201(a); and the use of the disjunctive in § 201(b) - "for such transmission or sale" - to my mind turns the scale. As it is not necessary to go any further, I prefer to rest my concurrence upon this ground alone, leaving undecided whether the Commission has any jurisdiction over the "facilities for * * * generation" as such because they too are "facilities for sale."
1 The oral arguments and the briefs filed by the parties amicus curiae were excillent and exceedingly helpful to the court.