Peoples Gas Light & Coke Co. v. Slattery ( 1939 )

I cannot concur in the rule adopted in the majority opinion, which seems to preclude an equity court's independent determination of the evidence concerning the amounts allowable for depreciation and for loss. The majority opinion holds that the finding of the commission will not be set aside unless it is arbitrary or unreasonable or in clear violation of law, or unless it is clearly against the manifest weight of the evidence, citing South Chicago Coal and Dock Co. v. CommerceCom. 365 Ill. 218, and Commerce Com. v. Chicago and EasternIllinois Railway Co. 332 id. 243. These cases were statutory appeals. The case before us is an appeal from a decree of the chancellor entered on a complaint in equity charging confiscation. In such a case a court of equity is empowered to, and in order to afford due process of law, must, determine such issues upon its own independent judgment as to both law and facts. Ohio Water Co. v. Ben Avon Borrough, 253 U.S. 287;Oklahoma Operating Co. v. Love, 252 id. 331; Missouri v.Chicago, Burlington and Quincy Railroad Co. 241 id. 553;Missouri Pacific Railway Co. v. Tucker, 230 id. 340.

This being so, the rule requiring that the findings of the chancellor on hearing or on approval of the report of the master in chancery shall not be disturbed upon review unless such findings are manifestly against the weight of the evidence, is to be applied. (Smuk v. Hryniewiecki, 369 Ill. 546 .) Under such rule, I am of the opinion, from the evidence in this record, that the conclusions of this court on the above named issues are erroneous. Other courts have applied this rule to cases of this character. Wichita Gas Co. v. Public ServiceCom. 126 Kan. 220, 268 Pac. III; Mississippi Railroad Com. v.Mobile and Ohio Railroad Co. 115 Miss. 101, 75 So. 778.

Mr. JUSTICE JONES, also dissenting.