City of Huntington v. Public Service Commission

Lynch, Judge: The first question to be answered is: Does the order entered by the commission preclude the right of the City of Huntington to ‘prosecute this review ? After fixing July 1, 1921, and the date of the June meter readings as its effective dates, and providing for continuation of its effectiveness un — 705 — til January 1, 1922, and the enlargement of applicant’s service in certain particulars not now involved, the order con-eludes: ‘ ‘ It is further ordered that the applicant file with the Commission, on or before the 20th day of January, 1922, a complete report setting out in detail its monthly revenue and operating expenses for the period from the first day of July, 1921, to the first day of January, 1922. Also setting forth what additions and’improvements it has made during the said period and what further additions and improvements are under construction at the time of the filing of the said report. And for the purpose of receiving said report and taking such action thereon as the Commission may deem proper, this case is retained upon the docket.” This, it is argued, is not a final order within the meaning of section 16, chapter 15-O, Code 1918. Its provisions are in substance and effect the same as those contained in the order reviewed in City of Charleston v. Public Service Commission, 83 W. Va. 718, 721. The opinion in that ease properly conceived the existence of a difference between the order dealt with and the order reviewed in City of Bluefield v. Bluefield Water Works & Improvement Company, 81 W. Va. 201, in that in the latter there was no such alteration of the respective rights of the parties concerned as warranted interference with the provisional order of the commission, or, to use the language of the opinion in the Charleston case, “there,” meaning the Bluefield case, “an increase in the rates had been granted by an experimental order, and neither the city nor any of its inhabitants were complaining of the increase allowed, but the water company was complaining that the increase allowed it was not sufficient *■***. If, however, we take the view that what the legislature meant” (by the use of the word “final”) “was such an order as grants relief to one party or the other, and changes the situation of the parties to their material advantage or disadvantage, the order complained of here is such an order.” In the ease now considered there is such a change. The rate increase asked by applicant the commission substantially granted, thereby increasing its gross and consequently its net annual earnings, to the detriment of its consumers, if — 706 — the revised rate schedules and the approved percentage produce inequitable results. The water corporation’s revenues necessarily will be more from the operation of the property according to the revised schedule than according to the schedule thus superseded. These accretions must come from consumers of water provided for their use and convenience. The situations of the parties, the water corporation and its patrons, are affected, one favorably, the other unfavorably. The observations made have for their purpose, and are relevant only to show the order to be within the purview of that provision of section 16, chapter 15-O, Code 1918, empowering this court to review the commission’s orders. Viewed in the light of that section, the order considered is within the power so conferred. It is hardly necessary to enter upon a prolonged discussion of the right to review the action of the commission, a right questioned because of the “purely administrative” character of the proceedings contemplated by the statute, chapter 15-O, creating the commission and delegating to it the. authority formerly possessed by the legislature alone. A schedule of rates for a public utility that effects inequitable results is and always has been the subject of judicial enquiry, whatever may be the source of the authority prescribing such rates. As said in Chicago & G. T. R. Co. v. Wellman, 143 U. S. 339, 344: “The legislature has power to fix rates and the extent of judicial interference is protection against unreasonable rates.” In Budd v. New York, 143 U. S. 517, there is this further remark: The “cases all support the proposition that while it is not the province of the courts to enter upon the merely administrative duty of framing a tariff of rates for carriage, it is within the scope of judicial power and a part of judicial duty to restrain anything, which in the form of a regulation of rates, operates to deny to the owners of property invested in the business of transportation that equal protection which is the constitutional right of all owners of other property. There is nothing new or strange in this.” How may courts without a judicial investigation in the form of a review determine the reasonableness of a rate? The act itself, section 16, if it does not expressly grant it, — 707 — clearly implies authority for the review when the matter of rates is involved whether they are excessive from the standpoint of the patron, or unreasonable from the standpoint of the utility. In either event this court is to “decide the matter in controversy as may seem to be just and right.” The Supreme Court of the United States says: “If the law be such as to make the decision of the legislature or of a commission conclusive as to the sufficiency of rates, this court has held such a law to be unconstitutional.” Missouri Pacific R. Co. v. Tucker, 230 U. S. 337, 340, 57 L. Ed. 1507, 1510, citing Chicago M. & St. P. R. Co., 134 U. S. 418, 33 L. Ed. 970. It can not reasonably be said that there can not be a review except when the rates are confiscatory. The commission’s authority relates to the effect they produce, that is, whether they are reasonable, just and fair to the utility and its patrons. The result must not be inequitable to either, the rights of both are to be considered and preserved. If either is to be protected to the disadvantage of the other, the utility must bear the consequences. The order entered by the Public Service Commission upon the application of Huntington Water Corporation, a utility engaged since 1886 in supplying water for use and consumption by the inhabitants of the City of Huntington and vicinity, is the subject matter of this investigation. To obtain a review of the order and direct its temporary or permanent suspension, City of Huntington challenges its correctness upon several theories. The order and the opinion considered together state the facts ascertained by the commission as a result of its investigation based upon the testimony of competent witnesses examined by the parties to the controversy. The present fair value of the property of the Huntington Water Corporation, useful and used in the service of the public, as so ascertained and determined for rate making purposes, is $1,150,000.00 on which the commission allowed nine per centum to provide a fund sufficient to meet the constant tendency of the property to depreciate in value by reason of the service to which it is devoted, and a reasonable return to the owner after payment of the expenses of opera — 708 — tion, including taxes and other charges of the same general character. The property valuation at the prescribed rate will yield $103,500.00 annually. The schedule of water rates superseded by the order involved would, as estimated by the agents of the corporation, yield an operating revenue for the year 1921 of $167,389.32, and a net revenue of $70,959.40, the expense of operation for the same period being $96,429.92. According to the claim of the wat.gr corporation, the exigencies of its business require an additional $32,541.54, but from this amount the commission deducted $2,541.54, leaving only $30,000.00, the difference in the two amounts being asked for to meet the variance in the revenues, as estimated by the engineers for the water corporation and the commission respectively. Or, instead of $103,500.00, which the commission found to be a reasonable return upon the corporation’s property, it provided for a net return of $100,-995.40. If from this sum there is deducted, as it should be, the $8,739.96, the depreciation reserve, there. remains $92,-255.44 available for use in the payment of interest on the mortgaged indebtedness of the corporation and for distribution among its stockholders in the form of dividends, if the property valuation as fixed by the commission is approximately correct. The outstanding capital stock of -the corporation aggregates $227,000.00, and its bonded indebtedness $800,000.00, one part of which bears five per cent, the other six per cent interest, the total interest charge being $47,234.00. If this charge is deducted from the net return, as we have ascertained it to be, the result is $45,021.44 available for distribution as dividends on capital stock, or to surplus account or such other use as the company may choose to apply it. Because this net balance, when applied to the payment of dividends on the par value of the stock, is unusual, the City of Huntington protests that an increase in the schedule of rates sufficient to yield such balance is without legal warrant, exorbitant and therefore in excess of the demands of justice and fair treatment. The protestant, City of Huntington, also assails as excessive and erroneous the valuation placed upon the company’s — 709 — property for rate making purposes. The -valuation represented by the figures, $757,831.67, according to its contention, more nearly approximates the fair value of the property as its engineer found it to he. The report filed by the company’s engineer shows the value to be $1,260,408.43. In arriving at this result he used as a basis for computation a valuation which he made of the same property in 1915 while serving the commission in the same capacity, and he found the property .then reasonably worth as an investment the sum of $1,178,641.00 as of the first day of that year. In his appraisal, in order to reach an approximate value for the purpose of the application of the water corporation then’ pending before the commission, he adopted the reproduction cost new less depreciation theory of valuation for properties appropriated to the use and benefit of the public, accepting as correct the average unit prices of labor, material and equipment covering a period of five years prior to January 1, 1915. Sometime thereafter he severed his connection with the commission and entered into the employment of the water corporation, particularly with reference to the ascertainment' of the property valuation for the purpose of the present proceeding. From the 1915 amount, with some corrections of minor importance, he first deducted the depreciation of the property since that date and added the actual cost of all subsequent additions to it and found its fair value for rate making purposes to be $1,260,408.13 as of November 30, 1920. Another engineer also employed by the city undertook to value the property from an historical point of view less depreciation. As,the result of his investigation did not prove satisfactory to the commission, it declined to accept his finding, because the corporation’s books did not contain sufficient data from which to determine with the requisite degree of certainty the actual or approximate cost of the property, and also because he did not attempt to show its cost prior to 1899, and of his method of determining the depreciation that has accrued since that year. With these different results and the testimony of competent witnesses explaining the different theories applied be — 710 — fore it, the commission, after considering both reports and the testimony, accepted as representing more nearly the reasonable value of the property the report of Anderson but reduced his amount to $1,150,000.00, which is less than the 1915 valuation. The method of computation adopted and followed by him in substance and effect is the same as that approved in Charleston v. Public Service Commission, 86 W. Va. 536, where, as in this case, no books showed the cost of the property. Under such circumstances there can be no serious or valid objection to the method adopted and pursued by .Anderson, especially where, as in both cases, ‘ ‘ the valuation was made under normal conditions when prices of material and labor were not inflated. ’ ’ This fact the commission recognized as being important. There being ample evidence to support the commission's findings, this court can not and will not disturb them. Norfolk & Western Ry. Co. v. Public Service Commission, 82 W. Va. 408; Mill Creek Coal & Coke Co. v. Public Service Commission, 84 W. Va. 662; City of Charleston v. Public Service Commission, cited. A controversy has arisen as to what constitutes the investment on which a public utility is entitled to a fair return from the operation of its property for public convenience, and for the most part this is the main ground of complaint against the schedule of rates fixed by the commission. As applied to the facts involved, the question is whether the proper basis for the computation in the process for the ascertainment of .a reasonable or fair return for the service rendered is the fair value of the property in its entirety, or, that valuation less $800,000.00, the amount of the corporation’s bonded indebtedness, a difference of $350,000.00. It is not, however, reasonable to suppose that the proceeds derived from this source represent anything like the amount the property has cost during the more than thirty years of its service in behalf of the public. Earnings of the company doubtless have gone into betterments, perhaps beyond the amount represented by the proceeds, and it may be, even beyond the valuation now considered. With this contention there is allied the still further argument or claim that to the extent the bonds represent investment in the property, the — 711 — measure of the return to the water corporation is the rate of interest they bear. That is, the corporation is not entitled to a return on the $800,000.00 indebtedness at a rate in excess of interest on that amount, and, therefore not upon the fair value of the property considered as a whole, without regard to the encumbrances on it. Or more briefly, the utility can not, it is argued, be permitted to earn a net return on the property in its entirety, but only on $350,000.00, the company’s equity in it. With practical unanimity courts have held that the return is to be based upon the present fair value of the property devoted to public service. In the leading case of Smyth v. Ames, 169 U. S. 466, the rule was first announced in this language: “We hold, however, that the basis of all calculation as to the reasonableness of rates to be charged by a corporation maintaining a highway under legislative sanction must be the fair value of the property being used by it for the convenience of the public. * * '* * What the company is entitled to ask is a fair return upon the value of that which it employs for the public convenience.” The court did, it is true, in that ease remark that “if a railroad has bonded its property for an amount that exceeds its fair value or if its capitalization is largely fictitious, it may not impose upon the public the burden of such increased rates that may be required for the purpose of realizing profits upon such excessive valuation or fictitious capitalization, ’ ’ but by way of precaution added: ‘ ‘ and the apparent value of the property and franchises used by the corporation, as represented by its stocks, bonds and obligations, is not alone to be considered in determining the rates that may be reasonably charged.” But by no means is this statement to be interpreted as a limitation upon the right of such a corporation to base its right to a net profit upon the fair value of its property without regard to the interest charge on its bonded indebtedness. Evidently these remarks are not so understood by the subordinate federal courts, for Circuit Court Judge Hunt in Montana W. S. R. Co. v. Morley, 198 Fed. 991, 1007, said: “But we must not accept the amount of the bonded debt as a complete or accurate criterion of the — 712 — value of the property” and approved the language of President Hadley of Yale University in the report of the Railroad Securities Commission to the President of the United States, dated November 1, 1911, saying: “Insofar as the value of the property is an element in rate regulation, the outstanding securities are of so little evidentiary weight that it would be of distinct advantage if courts and commissions would disregard them entirely except'as a part of the financial history of the property, and would insist upon direct evidence of the actual money invested in the properties.” See also: Knoxville v. Knoxville Water Co., 212 U. S. 1, 53 L. Ed. 371; Louisville & N. R. Co. v. R. R. Commission, 196 Fed. 800; Texas & P. R. Co. v. R. R. Commission, 192 Fed. 280. The present fair value of the property devoted to public use is the rule prescribed in the Minnesota rate cases, 230 U. S. 352, 355, 441. The same court has gone further and held that the return guaranteed by the Constitution of the United States is a return upon the “reasonable value of the property at the time it is being used for -the public.” San Diego L. & T. Co. v. Jasper, 189 U. S. 439, 442. And in Simpson v. Shepard (Minnesota rate cases, supra), the court, speaking through Mr. Justice Hughes, also said: “As the company may not be protected in its actual investment if the value of the property be plainly less, so the making of- a just return for the use of the property involves the recognition of its fair value if it be more than its cost. The property is held.in private ownership, and it is that property and not the original cost of it, of which the owner may not be deprived without due process of law.” In discussing the basis of valuation upon which a fair return must be allowed, the New Jersey Supreme Court in the case of Public Service Company v. Public Service Board, 84 N. J. L. 463, 474, said: “We are met with difficulties and valid objections'whether we adopt the standard of actual investment, of cost of reproduction or present value. It would be a waste of time for. us to go into this discussion. We think it enough to say that the great weight of authority is in favor of the standard of present value. That standard has the sanction of the United States Supreme Court in — 713 — cases involving the constitutional rights of the companies and is said by that court to be no longer open to dispute under the constitution. San Diego L. & T. Co., supra. Since all cases of the kind may come before that tribunal for final adjudication, and its decision upon the constitutional question would be binding upon us, we ought to adopt the same rule.” As said in Home Telephone Co. v. Carthage, 235 Mo. 644, 48 L. R. A. (N. S.) 1055, Ann. Cas. 1912-D 301, “What the company is entitled to demand in order that it may have just compensation is a fair return upon the reasonable value of the property at the time it is being used for the public.” This is the rule adopted and observed in Oklahoma as well as in nearly all of the state and federal courts where rate making cases have been considered and decided. Pioneer Telephone & Telegraph Company v. Westenhaver, 29 Okla. 429, 38 L. R. A. (N. S.) 1209; Western Union Telegraph Company v. State, 31 Okla., 415; Kennebec Water District v. Waterville, 97 Me. 185, 54 Atl. 6, 60 L. R. A. 856; Redlands L. & C. Domestic Water Co. v. City of Redlands et al., 121 Cal. 365, 53 Pac. 843; Oshkosh Water Works v. R. R. Commission, 161 Wis. 122, 152 N. W. 859, L. R. A. 1916-F 592. There are, it is true, some decisions that do for some purposes take into consideration the reasonableness of rates in connection with the original cost of property employed to promote the general welfare of the community in which it is located with reference to rates ample to pay fixed interest charges and dividends without, express recognition of the rule so abundantly sustained by the authorities cited and many others that could be cited that the present value of the property represents the amount on which the return must be computed. They treat the capitalization and indebtedness as relevant in the ascertainment of the true property valuation and for no other purpose. The only cases found upon this investigation so holding are Reagan v. Farmers’ Loan & T. Co., 154 U. S. 362; Dow v. Beidelman, 125 U. S. 680; Ball v. Rutland R. Co., 93 Fed. 513; Chicago M. & St. P. R. Co. v. Smith, 110 Fed. 473; Wallace v. Arkansas C. R. Co., 118 Fed. 422, 55 C. C. A. 192. In the Reagan case the question was whether in the oper — 714 — ation of the properties of the defendant, a railroad corporation, the schedule of rates prescribed by the Texas Railroad Commission were such as to yield revenues sufficient in amount to pay current expenses, taxes, etc., depreciation, interest on bonded indebtedness and a net profit sufficient to pay dividends on the company’s capital stock. This was the paramount question involved and decided. All others were important only upon questions of jurisdiction to review acts of the commission. After adjudging the tariffs to be insufficient to yield an amount large enough to compensate the owners of the capital stock in a reasonable amount in dividends, all the circumstances of the ease being considered, the court in replying to an argument upon the subject, added what certainly seems significant: “If the state were to seek to acquire the title to these roads under the power of eminent domain, is there any doubt that the constitutional provision would require the payment to the corporation of just compensation, that compensation being the value of the property as it stood in the markets of the world, and not as prescribed by the legislature? Is it any less a departure from the obligations of justice to seek to take not the title.but the use for the public benefit at less than its market value ? ’ ’ In Dow v. Beidelman, a suit the object of which was to determine whether a rate of three cents per mile for the carriage of passengers by railroad was not sufficient compensation, the argument was: “that with the same traffic that their road has now, and a charging for transportation at the rate of three cents per mile, the net yearly revenue will pay less than 1% per-cent on the original cost of the road, and only a little more than 2 per cent on the amount of its bonded debt.” The court did not decide the question presented because there was not in the record any “evidence as to how rtiuch the bonds cost or as to the amount of the capital stock of the corporation as reorganized or as to the sum paid for the railroad by that corporation or its trustees.” There was involved in Ball v. Railroad, supra, the question of the impairment of the charter provision of the railroad, “giving it the right to fix the rates of fare on its road within certain limits,” was considered and the court held that subsequent — 715 — legislation reducing the rates of fare below the limit and below “what will permit the railroad company to earn a reasonable income on the capital invested” is in violation of the fourteenth amendment as a taking of property without due process of law. In Railroad Co. v. Smith, supra, the court, acting upon the findings of a master in chancery, accepted the valuation of the company’s property devoted to public use as the basis for compensation to determine whether at the schedule of rates the company could earn a net profit from the operation of its property in an amount sufficient to pay fixed charges and discounts, and as result of the computation upon that basis, the court found the schedule insufficient. In substance and effect the language of Wallace v. Railroad Co. is the same. The court must have had before it the value of the property, else it could not have found upon demurrer to the bill the reduction of the gross earnings from the property to be far below an amount required to reimburse the company by the payment of operating expenses, taxes and fixed charges. There does not appear any sound principle of law that sanctions any other measurement for the return a utility is entitled to, than a rate, which when applied to the fair valuation of its property useful and used in behalf of the public, without regard to its capital stock or its mortgaged indebtedness; except that no rate of return is allowable unless it is sufficient under ordinary circumstances to cover the expenses incident to the operation of the property, including taxes, depreciation, interest and dividends. The facts proved and practically conceded do not even tend to show that the management of Huntington Water Corporation has not always been efficient and the service rendered by it satisfactory. There is no charge against it of any character except as to rates and the method of appraisement of its property. It has faithfully performed the duties, the performance of which it assumed when organized. No question has arisen as to watered stock, inflated prices, inefficient administration or ineompetency of its officers and agents; The only hint is its increase in salaries in anticipation of its application for a more remunerative schedule of rates. But the — 716 — salary increase is insignificant compared with the service rendered. Enough has been said to show that the present fair value of the property devoted to the service of the public is to be made the basis of the return to the owner or proprietor. This has been the rule recognized and applied heretofore by this court. City of Charleston v. Public Service Commission, 86 W. Va. 536; Bluefield Water Works Improvement Co. v. Public Service Commission, 89 W. Va. 736, recently decided. The amount of capitalization and bonded indebtedness of a public service company ordinarily is no test of the value of the property. 7 Fletcher, Cyclopedia of Corporations, Sec. 4536; Wyman, Public Service Corporations, Sec. 1092, cases cited. It is not the amount of the stockholders’ investment in the property, nor of their so-called equity, that determines the basis of the yield, but the value of the property devoted or-dedicated to public use. The final question to be discussed and decided is the net income the corporation may properly have from the operation of its property, as valued by the commission, such income as the corporation may use for the exigencies of its business, or may require for distribution among its stockholders in the form of dividends or otherwise. It is upon the answer to this question that a difference of opinion has arisen among members of the court. President Ritz and Judges PoffenbaRGER and Lively would measure or test the rate of income by the corporation’s equity in the property, either coupled with or independent of the amount of the corporate stock and indebtedness, or by each separately, or for some purposes in connection with the appraised value of the property. Judge MilleR and I base the income rate exclusively upon such valuation, disregarding as irrelevant and unimportant the equity, encumbrance and stock, insofar as they affect the corporation’s right to income. Our conception of the basis of that right is the value of the corporation’s property, the property it owns, the property in its entirety, the property the corporation has set apart to serve the public. It does not own the stock, it does not own, but owes the indebtedness, and neither the stockholders nor the creditors — 717 — own the corporation’s property. The sole owners of the property is the corporation, and the corporation has the unqualified right to control and manage the property to promote the welfare of the public. The only interest the creditors have in the property resides in the indebtedness, and the only interest the stockholders have in the property is in the dividends to be paid and in the persons who shall manage and control the corporate business. In line with these observations, as it seems to the writer, is the language of the opinion in Coal & Coke Ry. Co. v. Conley, cited, (p. 190): “Exorbitant rates can not be exacted from the public for the sole reason that persons interested in a corporation have contracted with it and with another for profits in excess of that which amounts to a reasonable and fair return on the money actually invested or the equivalent of the actual value of the plant. The capitalization may far exceed the utmost value of the company’s property for some reason. ’ ’ This argument was intended to answer and did answer the claim advanced that the rate of income should be adequate to pay dividends on the company’s stock issues and interest on the company’s indebtedness, though these items may with others have exceeded the fair value of the property. A corporation is an entity wholly distinct from the owners of its capital stock. It has the legal title to the corporate property, its shareholders do not have any title to it. Each has a separate existence, separate interests and separate liabilities, and, insofar as the right of an individual member of the company to its earnings is concerned, he is entitled only to his proportionate share of the surplus profits. The corporation is the real person. Park v. Petroleum Co., 25 W. Va. 108; Moore v. Schoppert, 22 W. Va. 282; Kanawha Coal Co. v. Ballard & Welch Coal Co., 43 W. Va. 721. If the capital stock and indebtedness of a corporation are to be excluded from the appraisement of its property as the basis of the return it is' entitled to when they exceed the .value of the property, why should they not also be excluded from consideration for any and all purposes when they are materially less than its value ? Although not directly in point, it may not be amiss to remark that in Towne v. Eisner, 245 — 718 — U. S. 418, 425, the Supreme Court of the United States held in effect that dividends in the form of stock are not income as the word is understood, and that stock dividends are not taxable as such under the federal income tax law of 1913. There is no immutable standard for the measurement of the income a company serving the public is entitled to under all circumstances and conditions, and in the very nature of things there could not be. The facts of each case differ from the facts of every other case. No two of them are any .more alike than are two or more faces. Neither is the legal rate of interest a safe or certain guide, as the authorities say. In some instances a utility may require a greater percentage of income than the law prescribes, and in others less than such a rate. But usually the authorities agree that the basis of the rate is the value of the property devoted to a public use, not the utility’s stocks or bonds, and with this as a starting point, sanction a rate which will produce such a net income as will repay in profits a just and reasonable compensation for' the use of the property so valued, whether the rate is more or less than the legal interest rate, inflated prices being excluded. If the rate is excessive in its results in that it yields more than is just and fair to the consumer it then is an unreasonable rate but if it does him no injustice he can not be heard to complain. The only injustice of which complaint is made is not by the consumers directly, but by the City of Huntington, the sole protestant, and the basis of its complaint is that the company’s stockholders receive a greater percentage of dividends than they should have, and for that reason the city injects the amount of the capital stock and the indebtedness into the balance where otherwise other matters may be in a state of equipoise. By the proposed method and by it alone can it be made to appear that the 9% rate .is inequitable. To say the least, the rules now advocated are innovations upon the rules generally recognized as being approximately just and fair, where the conditions are normal. If the former should receive general judicial approval from what source would a company, engaged in the performance of a public duty with a valid capital stock or a valid indebtedness — 719 — in excess of the estimated, tbougb not tbe fair value of its property, earn a profit from the operation of its property, if the operating expenses and interest charges exhausted the gross revenue? That condition would necessitate railroad receiverships practically without limit, and deter capital investment in any public enterprise. As it seems to me, a return is not reasonable when limited to interest upon indebtedness and a mere dividend on stock without allowance for the additional risk assumed and entailed in a public business. To warrant suspension of a schedule of rates lawfully authorized, on the ground of alleged unreasonableness, the disparity between what is reasonable and unreasonable ought to appear sufficiently clear. If it does not work a hardship upon the community served, it ought not to be suspended. There is in this case an obvious lack of imposition upon the water consumers, and an equally evident lack of an undue return to the utility. It can not, therefore, be contended, even if important in view of what has been said, that the order provides a fund to be assessed to and collected in advance from water consumers for a substantial enlargement of the corporation’s water supplying instrumentalities and their extension so as to increase the number of its patrons, and consequently the quantum of revenue the betterments will yield when completed and paid for, as well as the value and efficiency of the applicant’s property. Even if there be a demand for such improvement, no rule or principle of law authorizes advancement of rates for water furnished to consumers in order to raise a fund to be administered and applied in advance to defray the expenses incident to the improvement. The corporation must resort to other financial sources, as by the negotiation of loans, or by the issuance and sales of capital stock to obtain the means to meet such expenditure. Reason and authority dictate such a policy; No. 3400, 20 I. C. C. R. 266, where the Interstate Commerce Commission denied the demand for railroad transportation rates to enable the carrier to improve its property, and permission to make such increases, and said that for the purpose of determining whether a given advance is reasonable, the — 720 — railway ought not to treat as a part of its operating expenses the cost of permanent improvement or extensions, and this must of necessity mean that the rates should not be sufficient to allow both payment of dividends to stockholders and interest to bondholders and an additional sum for the purpose of improving and increasing the value of such property. See also pages 335-336, same volume, “Intent to increase the plant value through improvements although such improvements are partially completed can not be accepted as the basis for the purpose of fixing rates, the actual fair value at the time used and useful in the business of furnishing service to the public being the true basis for calculating proper charges,” Re Seneca Telephone Company, P. U. R. 1919 F, 48; Re Farmers & Merchants Telephone Company, P. U. R. 1918 F, 283; Re Missouri & Kansas Telephone Company, P. U. R. 1918 C, 55. Judge Miller and I do not agree to a suspension of the order reviewed.