Securities & Exchange Commission v. New England Electric System
Opinion of the Court
delivered the opinion of the Court.
New England Electric System (NEES) is a holding company registered under § 5 of the Public Utility Holding Company Act of 1935.
By §11 (b)(1)
On petition for review the Court of Appeals reversed on the ground that the Commission had misinterpreted the statutory phrase “loss of substantial economies.” 346 F. 2d 399. The court held that Clause (A) “called for a business judgment-of what would be a significant loss, not for a finding of total loss of economy or efficiency” (346 F. 2d, at 406), and, believing that on this record and with the statute so interpreted there could have been a finding in favor of NEES, remanded the case to the Commission. We granted certiorari, 382 U. S. 953.
We agree with the Commission’s reading of Clause (A) and remand the cause to the Court of Appeals so that
The requirement in § 11 of a “single integrated” system is the “very heart” of the Act.
“Section 11 of both bills [i. e., the House and Senate versions], therefore, authorizes the Securities and Exchange Commission to require a holding company to limit its control over operating utility companies to one integrated public-utility system.
“The conference substitute meets the House desire to provide for further flexibility by the statement of additional definite and concrete circumstances under which exception should be made to the form of one integrated system. . . .
“The substitute, therefore, makes provision to meet the situation where a holding company can*181 show a real economic need on the part of additional integrated systems for permitting the holding company to keep these additional systems . . . .” H. R. Rep. No. 1903, 74th Cong., 1st Sess., 70-71. (Italics supplied.)
Additional light is shed on the purpose of § 11 by the remarks of Senator Wheeler, a member of the conference committee:
“Since both bills accepted the proposition that a holding company should normally be limited to one integrated system, my colleagues and I conceived it to be our task to find what concrete exceptions, if any, could be made to this rule that would satisfy the demand of the House for some greater flexibility. After considerable discussion the Senate conferees concluded that the furthest concession they could make would be to permit the Commission to allow a holding company to control more than one integrated system if [among other tests] the additional systems were in the same region as the principal system and were so small that they were incapable of independent economical operation . . . .” 79 Cong. Rec. 14479. (Italics supplied.)
As the Commission said in 1948:
“The legislative'history of Section 11 (b)(1) indicates that it was the intent of Congress to create only a limited exception to the general rule confining holding companies to a single system, and that this exception was created to deal with the situation in which the proven inability of the additional system to stand by itself would result in substantial hardship to investors and consumers were its relationship with the holding company terminated.” Philadelphia Co., 28 S. E. C. 35, 46.
This suggests a much more stringent test than “a business judgment of what would be a significant loss,” to quote the Court of Appeals. 346 F. 2d, at 406. Promotion of “economy of management and operation” and “the integration and coordination of related operating properties” (§ 1 (b)(4), 49 Stat. 804, 15 U. S. C. § 79a
“Although the NEES Gas Division handles sales and promotional activities and various other matters for the gas subsidiaries separately from the electric companies, final authority on all important matters rests in the top NEES management. The basic competitive position that exists between gas and electric utility service within the same locality is affected by such vital management decisions as the amount of funds to be raised for or allocated to the expansion or promotion of each type of service.”15
Competitive advantages to be gained by a separation are difficult to forecast. The gains to competition might
The phrase “without the loss of substantial economies” is admittedly not crystal clear. But the Commission’s construction seems to us to be well within the permissible range given to those who are charged with the task of giving an intricate statutory scheme practical sense and application. Power Reactor Co. v. Electricians, 367 U. S. 396, 408. And see Philadelphia Co. v. SEC, 177 F. 2d 720, 725.
Reversed and remanded.
49 Stat. 812, 15 U. S. C. §79e (1964 ed.).
NEES, the electric companies, and the gas companies are all parties respondent and are hereafter referred to as respondent.
49 Stat. 820, 15 U. S. C. § 79k (1964 ed.).
49 Stat. 810, 15 U. S. C. § 79b (a) (29) (A) (1964 ed.). An “integrated public-utility system” as applied to electric utility companies is defined by § 2 (a) (29) (A) as “a system consisting of oiie or more units of generating plants and/or transmission lines and/or distributing facilities, whose utility assets, whether owned by one or more electric utility companies, are physically interconnected or capable of physical interconnection and which under normal conditions may be economically operated as a single interconnected and coordinated system confined in its operations to a single area or region, in one or more States, not so large as to impair (considering the state of the art and the area or region affected) the advantages of localized management, efficient operation, and the effectiveness of regulation.”
49 Stat. 810, 15 U. S. C. § 79b (a) (29) (B) (1964 ed.). An "integrated public-utility system” as applied to gas utility companies is defined by § 2 (a) (29) (B) as “a system consisting of one or more gas utility companies which are so located and related that substantial economies may be effectuated by being operated as a single coordinated system confined in its operations to a single area or region, in one or more States, not so large as to impair (considering the state of the art and the area or region affected) the advantages of localized management, efficient operation, and the effectiveness of regulation.”
49 Stat. 820, 15 U. S. C. § 79k (b)(1) (1964 ed.).
The Commission has long held that a single “integrated public-utility system” cannot include both gas and electric properties. See Columbia Gas & Electric Corp., 8 S. E. C. 443, 462-463; The United Gas Improvement Co., 9 S. E. C. 52, 77-83; Philadelphia Co., 28 S. E. C. 35, 44. Respondent does not contest this aspect of the Commission’s reading of the Act.
North American Co. v. SEC, 327 U. S. 686, 704, n. 14; S. Rep. No. 621, 74th Cong., 1st Sess., 11.
North American Co. v. SEC, supra, at 696-697.
S. 2796, § 11 (b), 74th Cong., 1st Sess. And see S. Rep. No. 621, 74th Cong., 1st Sess., 32.
S. 2796, §11 (b), as passed by the House of Representatives, and sent to the Senate on July 9, 1935. And see H. R. Rep. No. 1318, 74th Cong., 1st Sess., 17.
Respondent concedes that the Commission has, since 1948, “articulated” a test “like the present test.” See Philadelphia Co., 28 S. E. C. 35, 46-47, 53-74; General Public Utilities Corp., 32 S. E. C. 807, 814-815, 826-827, 831; Middle South Utilities, Inc., 35 S. E. C. 1, 11-13. Respondent contends, however, that previous decisions of the Commission applied a less restrictive standard of “substantial economies.” The Commission disagrees, urging that while there was “some variation in choice of words,” it has maintained a basically consistent position and that any semantic differences are due largely to “the varying contentions with which the Commission was dealing.” The cases referred to are North American Co., 11 S. E. C. 194, 208-213; Engineers Public Service Co., 12 S. E. C. 41; Cities Service Power & Light Co., 14 S. E. C. 28, 37; Middle West Corp., 15 S. E. C. 309, 319; Cities Service Co., 15 S. E. C. 962, 984; American Gas & Electric Co., 21 S. E. C. 575, 596-597. We do not read those eases as being inconsistent with the Commission’s position since 1948. In each of these cases the Commission found no showing of “substantial economies" under whatever test might be applied; thus it was not there compelled to go further. There are, to be sure, a few cases in which the Commission permitted retention of small additional systems on the ground that the requirements of §11 (b)(1) were met; in these, however, the Commission did not articulate any standard. See, e. g., Federal Light & Traction Co., 15 S. E. C. 675, 683; Republic Service Corp., 23 S. E. C. 436, 451. But cf. North American Co., 11 S. E. C. 194, 243-244.
We cannot say that these early decisions show any clear inconsistency with the standard which the Commission today applies, and has applied since 1948. Under these circumstances, we feel justified in regarding the Commission’s reading of the statute as supported by consistent administrative practice.
Section 1 (b) provides “. . . [I]t is hereby declared that the national public interest, the interest of investors in the securities of holding companies and their subsidiary companies and affiliates, and the interest of consumers of electric energy and natural and manufactured gas, are or may be adversely affected ... (2) when subsidiary public-utility companies are subjected to excessive charges for services, construction work, equipment, and materials, or .enter into transactions in which evils result from an absence of arm’s-length bargaining or from restraint of free and independent competition; . . .” (Italics supplied.)
See S. Rep. No. 621, 74th Cong., 1st Sess., 29; Report of National Power Policy Committee, H. R. Doe. No. 137, 74th Cong., 1st Sess., 10 (Appendix to S. Rep. No. 621, 74th Cong., 1st Sess.).
Congress was well aware of the anti-competitive potential of corporate structures through which control of gas and electric utility companies rests under the umbrella of a single holding company. That a holding company so situated might retard expansion of the gas utility company in favor of the electric utility company was expressly discussed in the Senate Hearings on an earlier version of the Act. See Hearings before the Senate Committee on Interstate Commerce on S. 1725, 74th Cong., 1st Sess., 783.
Congress made specific provision in §8 of the Act to prohibit a registered holding company from acquiring an interest in both an electric and a gas utility serving the same territory in a State which prohibits common control, without first obtaining permission from the appropriate state regulatory agency. While § 8 reflects the concern of Congress with this aspect of competition (see S. Rep. No. 621, supra, at 29-30; Report of National Power Policy Committee, supra, at 10), there is no warrant for concluding that §8 was the exclusive legislative effort relating to the problem. The history of the Act reflects the presence of a sophisticated statu
By fostering competition between gas and electric utility companies, the Act promotes what has been described as “variegated competition.” Hearings before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., pt. 2, 840 (1965) (statement of Dr. Samuel M. Loescher). “But since the distribution of electricity, following geographical divorcements, was to remain a natural monopoly in every region, the only kind of competition to be enhanced was that of ‘variegated competition.’ ” Ibid.
See, e. g., Hearings before House Committee on Interstate and Foreign Commerce on H. R. 5423, 74th Cong., 1st Sess., 1249, 1402-1403, 1530-1531, 2257-2277; Hearings before Senate Committee on Interstate Commerce on S. 1725, 74th Cong., 1st Sess., 65. It was only the loss of “substantial economies” that Congress thought would justify an exception from the separation rule of § 11.
Dissenting Opinion
dissenting.
The question before the Court is the meaning of the phrase “loss of substantial economies” as it appears in § 11 (b)(1) of the Public Utility Holding Company Act of 1935.
Inquiry naturally begins with the language of the Act, and with our reiterated principle that “the words of statutes . . . should be interpreted where possible in their ordinary, everyday senses.” Crane v. Commissioner, 331 U. S. 1, 6; Malat v. Riddell, 383 U. S. 569, 571. In this instance plainly the normal meaning of “substantial economies” is a significant amount of money and not that amount, whatever its size, which guarantees corporate survival. The first reading would be given by lawyers and laymen alike automatically while the second could hardly be imagined without the prompting of persuasive legislative evidence. If Congress had intended the Court’s test to govern, it qould easily have said so in
If the natural reading produced some strange or arbitrary result there might be reason to hesitate; but in this case the literal reading makes excellent sense in serving the very rational and desirable end of financial economy. The Congress that passed the Act had been importantly concerned with the “intensification of economic power beyond the point of proved economies . . . .” H. R. Doc. No. 137, 74th Cong., 1st Sess., 4; see §§ 1 (b)(4), (5) of the Act, 15 U. S. C. §§ 79a (b)(4), (5) (1964 ed.) (policy statement), and the Act itself bristles with provisions aimed largely at attaining efficient management and operations. See §§ 7 (d)(3), 10 (c)(2), 12 (d), (f), (g), 13, 15 U. S. C. §§79g (d)(3), 79j (c)(2), 791(d), (f), (g), 79m (1964 ed.). With this background, nothing could be more plausible than to curtail divestiture at the point where the prospect of substantial losses removed a prime reason for having divestiture at all. There are to be sure other dangers in proliferated growth besides disecon-
Legislative history and purpose, heavily relied on by the Court, furnish no reason for departing from the natural reading of the Act. There was very little direct explanation of the “substantial economies” provision in Congress; the majority opinion sets out in full the two important statements, one by the House Conference Committee (ante, pp. 180-181) and the other by Senator Wheeler (ante, p. 181).
Senator Wheeler’s statement, by contrast, does support, if indeed it is not the source of, the SEC interpretation, and normally the view of a principal sponsor of
To support its construction of the “substantial economies” provision, the Court also relies on two general policies attributed to the Act as a whole. It is initially emphasized that the Act’s overriding aim was to confine holding companies to a single integrated system while control of additional systems was to be “decidedly the exception” (ante, p. 180). The mild but misleading inference is that the “exception” is some minor, little noticed addendum, to be strictly construed. In truth, the original, more stringent version of § 11, popularly known as
Far more weight is given by the Court’s opinion to the Act’s supposed hostility toward common control of gas and electric utility systems with its danger of stifled competition. First of all, this hostility appears to be an illusion. The House and Senate Committees in identical language expressly stated that common ownership of competing forms of energy was “a field which is essentially a question of State policy”; the present § 8, 15 U. S. C. § 79h (1964 ed.), was enacted to support this approach by using federal power to limit common ownership only where it is contrary to state law. See S. Rep. No. 621, 74th Cong., 1st Sess., 29-30; H. R. Rep. No. 1318, 74th Cong., 1st Sess., 14-15.
Furthermore, a constricted reading of the “substantial economies” provision is a quite unsuitable way of responding to the dangers in common ownership of competing types of utilities. The provision is equally intended to govern common control of two or more gas systems or two or more electric systems and, at least in the abstract, the Court’s reading will hinder those arrangements as well though its rationale is irrelevant to them. If the SEC is prepared to show that freeing a gas system from control by an electric system will improve earnings by some amount, then this may be a legitimate offset to the losses that can be shown, and there is leeway for rough calculations and for estimates based on studying past separations. See Ritchie, Integration of Public Utility Holding Companies 143-147 (1954). But to dispense with proof and disregard the basic test of “substantial economies” is to undo Congress’ own careful compromise of the various conflicting policy interests.
To conclude, I think it should be noted that the Court’s departure from the statute is not just an abstract legal error but does immediate, tangible harm in a most practical sense. The annual losses which respondent has forecast for its gas system because of separation exceed
49 Stat. 820, 15 U. S. C. § 79k (b) (1). This subsection provides that a holding company shall be limited to “a single integrated public-utility system,” provided that the Commission shall permit control of additional systems if:
“(A) Each of such additional systems cannot be operated as an independent system without the loss of substantial economies which*186 can be secured by the retention of control by such holding company of such system;
“(B) All of such additional systems are located in one State, or in adjoining States, or in a contiguous foreign country; and
“(C) The continued combination of such systems under the control of such holding company is not so large (considering the state of the art and the area or region affected) as to impair the advantages of localized management, efficient operation, or the effectiveness of regulation.”
I say “seems” to hold both because two statements in the opinion (ante, pp. 179, 184-185) emphasize a supposed offsetting economic saving to be found in divestiture and because the SEC has stated the test in this case in varying terms.
This could in fact have been accomplished simply by chopping off the last half of the present, controlling clause {supra, n. 1), leaving the condition to read “[e]ach of such additional systems cannot be operated as an independent system” and omitting wholly the qualifying language which begins “without the loss of substantial economies.”
“It . . . [is] wrong to deny the natural meaning of language its proper primacy; like Cardozo’s ‘Method of Philosophy,,’ it ‘is the heir presumptive. A pretender to the title will have to fight his way.’ ” Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Felix Frankfurter: The Judge 40 (1964).
One other legislative comment on the provision favors the Commission, 79 Cong. Rec. 14165-14166 (remarks of Mr. Cooper), but the Court of Appeals properly disregarded it as an opponent’s attempt to blacken the Act, cf. Labor Board v. Fruit Packers, 377 U. S. 58, 66, and the SEC no longer relies upon it in its brief.
The statement was quoted as cumulative, minor evidence on another matter in 1941, the SEC admitting that it “may not strictly be considered part of the legislative history” but saying it deserved “some consideration.” Engineers Pub. Serv. Co., 9 S. E. C. 764, 782-783. In 1942, it was quoted as bearing on the present question but its test was not adopted. North American Co., 11 S. E. C. 194, 209. The following year the statement was thought to reveal “one” of the various criteria to be used along with others. Cities Serv. Power & Light Co., 14 S. E. C. 28, 62.
For its “decidedly the exception” characterization, the Court cites (ante, p. 180, n. 9) North American Co. v. SEC, 327 U. S. 686. That decision imparted no such gloss to the ABC clauses but gave a most cursorv summarv in passing on the constitutionality of §11 (b)(1).
The Court’s opinion (ante, p. 184, n. 14) quotes from p. 7 of the above-cited Senate report, borrowing from it language that suggests § 11 was forwarding the same policy as § 8. What the Court overlooks is that this discussion was directed to an earlier and very different version of § 8, in which it also embodied other restrictions on holding company ownership having nothing to do with common control of gas and electricity but closely related to § ll’s policy of federally imposed simplification. A reading of the Court’s quotation in context along with the relevant version of S. 2796, 74th Cong., 1st Sess., §§ 8, 11 (as reported on May 13, 1935), will quickly show that its reliance is misplaced. The majority’s other citations
It should again be remembered also that the present provision is not the only legislative safeguard. Even to obtain ownership over two systems, a holding company must, along with proving “substan
The Fifth Circuit case is Louisiana Pub. Serv. Comm’n v. SEC, 235 F. 2d 167. It was reversed here on jurisdictional grounds, 353 U. S. 368, which does not of course impair its statement on the merits. The Second Circuit decision is North American Co. v. SEC, 133 F. 2d 148, aff’d on constitutional questions, 327 U. S. 686. The District of Columbia decision is Philadelphia Co. v. SEC, 85 U. S. App. D. C. 327, 177 F. 2d 720; that court thought it was following its earlier two-to-one decision in Engineers Pub. Serv. Co. v. SEC, 78 U. S. App. D. C. 199, 138 F. 2d 936, cert. granted, 322 U. S. 723, vacated as moot, 332 U. S. 788, but Engineers is ambiguous.
Among examples — and I do not mean to approve or disapprove the ones I cite — are SEC rulings that as noted it will not consider losses to the principal system, General Pub. Utils. Corp., 32 S. E. C. 807, 838-839 (1951); that it will not consider tax losses as a very significant factor, Cities Serv. Co., 15 S. E. C. 962, 985 (1944); that it will give only limited weight to capital costs of divestiture, Eastern Utils. Associates, 31 S. E. C. 329, 349 (1950); and that it will offset predicted gains resulting from separation against the losses, North American Co., 18 S. E. C. 611 (1945).
Reference
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