
    GREAT NORTHERN UTILITIES CO. v. PUBLIC SERVICE COMMISSION et al.
    No. 1060.
    District Court, D. Montana.
    Oct. 5, 1932.
    Conforming to decision of Supreme Court 285 U. S. 524, 52 S. Ct. 313, 76 L. Ed. 921. ’
    Gunn, Raseh, Hall & Gunn and E. G. Toomey, all of Helena, Mont., for plaintiff.
    L. A. Foot, Atty. Gen., and Francis A. Silver, of Helena, Mont., for defendants.
    Before SAWTELLE, Circuit Judge, and' PEAY and BOURQUIN, District Judges.
   BOURQUIN, District Judge.

Heretofore, an interlocutory injunction was awarded plaintiff against tbe defendant commission’s rate order found unreasonable for that (1) at rates affording fair return tbe field is insufficient for more than one utility, in consequence of which plaintiff’s right to compete with a rival to tbe survival of the stronger if not the fittex*, cannot be legally divested by tbe minimum rate by tbe order prescribed, and/or (2) the prescribed rates do not afford fair return. See (D. C.) 52 F.(2d) 802.

Affirmance by tbe Supreme Court is “without prejudice to tbe consideration and determination at final bearing of all questions of law and fact, including tbe question of tbe reasonableness, in tbe circumstances disclosed, of tbe order which is tbe subject of tbe suit.” See 285 U. S. 524, 52 S. Ct. 313, 76 L. Ed. 921.

At this final bearing the evidence, objections to which are overruled, varies little, if any, from that at tbe former bearing, and discloses the facts, circumstances, and situation are unchanged. Likewise are our views and findings, which, together with pleadings and evidence, sufficiently appear at (D. C.) 52 F.(2d) 802, and without more tbe injunction is made permanent.

It may be observed that plaintiff’s proposed amendment to its complaint, in substance, that the commission’s rates will not afford fair return and are confiscatory, opposed by defendants, is unnecessary and disallowed. Tbe fact was recognised by defendants from tbe beginning, they declared it in their report of which tbe order is a part, and conceded it throughout save in so far as by belated and strategic answer uselessly compelling this second final hearing, they deny tbe knowledge of insufficiency of tbe field which their report discloses they in fact bad. If now an issue, the pleadings suffice to present it, necessarily involved in “tbe question of tbe reasonableness, in tbe circumstances disclosed, of tbe order” in suit.

Decree accordingly.  