263 F2d 626 Sears v. Federal Power Commission

263 F.2d 626

H. F. SEARS and A. E. Herrmann Corporation, Petitioners,

No. 17009.

United States Court of Appeals Fifth Circuit.

February 20, 1959.

D. H. Culton, Culton, Morgan, Britain & White, R. W. Richards, Amarillo, Tex., for petitioners.

W. Russell Gorman, Atty., Howard E. Wahrenbrock, Sol., Willard W. Gatchell, Gen. Counsel, Leo E. Forquer, Atty., F. P. C., Washington, D. C., for respondent.

Before TUTTLE, JONES and BROWN, Circuit Judges.

TUTTLE, Circuit Judge.

This appeal presents substantially the same questions as were before the Court for disposition in Forest Oil Corp. v. Federal Power Commission, 5 Cir., 263 F.2d 622.

The only substantial difference between the cases is that the petitioners here did not make a motion before the Commission before the final order, as was done in Forest Oil Corporation, for further opportunity to produce the financial type of evidence which was indicated by the Commission's order in Bel Oil v. F. P. C., No. 300, would be required. On oral argument before this Court, counsel for petitioner requested that this opportunity be given.

As we said in Gulf Oil Corporation v. Federal Power Commission, 5 Cir., 255 F. 2d 556, 557:

"We think justice requires that the matter be referred back to the Commission for the taking of additional testimony, especially in light of the Pan American opinion [Opinion 310]."

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The petition is granted to the extent that the Commission is directed to reopen these proceedings to afford petitioner reasonable opportunity to adduce such evidence as they may be advised is relevant to the inquiry whether the proposed rate is just and reasonable. In all other respects the petition is denied.