(203 P.) petent evidence, the decision of the commis- [ sideration, and the Public Utilities Act sion should be set aside. It does not follow, makes provision that upon such hearing "evhowever, from the fact that the total valua- idence may be presented by the political subtion found by the commission is closely iden- division, by each owner as claimant named tified with the estimate of its engineer, that in the petition, and by the commission," and the commission followed in detail the sched- the commission has authority to call a witule of items and values set out in such esti-ness at its own instance and even against mate. It may have reached the same result by incorporating valuations at different prices, and on other elements of the system, gathered from the estimates of the other engineers. Union Hollywood Water Co. v. City of Los Angeles, 195 Pac. 55. The law will presume that such was the fact, rather than indulge the inference that matters presented and supported by competent evidence were ignored. It may be true that the analysis of the items and figures of the report of the commission's engineer would be persuasive evidence in support of petitioner's contention on a trial, but they are not sufficient to impeach a judgment. This general finding of the commission is like the general verdict of a jury, not open to attack for insufficiency if supported by any reasonable construction of the evidence. It is doubly fortified in this respect, as the Public Utilities Act in the section authorizing the procedure here under review expressly provides that "The finding of the commission [as to just compensation] shall be final and shall not be subject to modification, alteration, reversal or review by any court of this state." This is subject, of course, to the qualification that the commission must have regularly pursued its authority, and have acted upon competent evidence, and as corollary to this, that it has not ignored or failed to consider any competent evidence; but any ground of attack upon the regularity of its proceedings must be clearly established. If the decision is regular on the face of the record it will be supported by every presumption that follows a judgment of a court of record. Clemmons v. R. R. Commission, 173 Cal. 254, 159 Pac. 713; Marin Water Co. v. R. R. Commission, 171 Cal. 706, 154 Pac. 864, Ann. Cas. 1917C, 114; Pac. Telephone & Telegraph Co. v. Eshleman, 166 Cal. 640, 137 Pac. 1119, 50 L. R. A. (N. S.) 652, Ann. Cas. 1915C, 822. "An appellate court will not interfere with the report of commissioners [in the assessment of damages to correct the amounts reported] except in case of gross error showing prejudice, corruption, or plain mistake." Shoemaker v. U. S., 147 U. S. 282, 13 Sup. Ct. 361, 37 L. Ed. 170. [4] Even if, however, as petitioner claims, the commission adopted and followed the estimates and evidence of its own engineer, its decision is not necessarily open to attack on that account. The commission engineer was a competent witness, he had made a special investigation of the water system under con the will of the owner of the utility, on the subject of the value of the property. Marin Water & Power Co. v. R. R. Commission, supra. Unless, then, its engineer omitted some material element of valuation or introduced some erroneous measure of appraisement into his report and testimony, the Railroad Commission had a right to accept such evidence as the basis of its finding, to the exclusion of other evidence that it may have considered less satisfactory. Petitioner claims, first, that, in appraising the reproduction cost of the Auburn city reservoir, the estimate of $10,822 of the commission's engineer was but tentative, whereas other undisputed evidence fixed the reproduction cost at $11,131.75. The variance in these valuations arose from a difference in the estimates of the yardage of excavation under the embankments of the reservoir, or stripping of the surface soil, in preparing a foundation for the embankments. No actual inspection or measurement could be made. The estimates of all the witnesses were largely a matter of deduction and opinion. Mr. Givan, the engineer of the city of Auburn, testified that after as complete an investigation as he could make he could find no evidence of any such stripping excavation, and gave reasons why he thought it was not there. Mr. Ryan, the engineer for petitioner, estimated the excavation at 3,350 cubic yards, allowing 15 feet of stripping under the embankments. Mr. Faude, the commission's engineer, estimated 3,200 cubic yards, with an allowance of 8 feet of stripping. He testified that on account of the other engineers not being able to agree on yardage of reservoir he adopted 3,200 cubic yards as tentative, that he did not do this altogether as adopting the medium between the other estimates, but that he made some computations, not accepting the quantities of either side. If the commission had adopted the conclusion reached by Mr. Givan and made no allowance at all for the stripping excavation, we do not see how its finding could be impeached. The next specification by petitioner is the alleged failure to include in the valuation 68 fire-hydrant connections of the value of $367.67. This item was included in Engineer Ryan's estimates, but not in those of either Engineer Givan or Engineer Faude, at least not specifically. There are two elements of uncertainty as to the legitimacy of this claim. One is that there was some ground for inference that the city had previously paid for these connections when the hydrants were installed, the hydrants having been paid for by the city; the other is the contention of respondent that allowance of the amount due, if any, on this item, may have been included as an allowance for contingencies in Engineer Faude's estimate for overhead costs. [7, 8] The most urgent objection to the valuation of property arrived at in this proceeding is on the alleged ground that the commission resorted to an unfair and unauthorized method of fixing the amount of depreciation in the value of this water system. As has been stated, the value as of the date of [5] In any event, it does not sufficiently May 10, 1918, was reached by all of the enappear that petitioner has in this particular gineers by estimating the cost of reproduc'been denied any just compensation. It is not tion of the plant and deducting from the enough that the record does not affirmatively amount the deterioration in value suffered show that this item is properly accounted during the life of the system up. to such date. for. It must, in order to avoid the decision, | Engineers Faude and Givan, in their estibe affirmatively and satisfactorily shown mates, used what is known as the straightthat it is not included. It is conceded that if the petitioner corporation owns these hydrant connections it is entitled to have their value computed in the commission's valuation, irrespective of who paid for them. line method, while Engineer Ryan, for the petitioner, used what is known as the sinking fund method in estimating deterioration. The straight-line method consists in calculating from examination and experience in like constructions the total life period of the constituent parts of the plant, and then deducting from their value that proportion of decrease represented by the ratio of the entire life period. For example, if the estimated life is 50 years and 25 years of that time has elapsed, it is assumed that the value has depreciated 50 per cent. The sinking fund method is more complicated and consists, as we understand it, in charging for depreciation an annual sum which with compounding interest thereon will at the termination of the estimated life of the investment replace the original cost, and if cut off at any given period the accumulation will represent the depreciated value to that date. A more important contention of petitioner is that under Engineer Faude's estimate no allowance was made for preliminary and organization expenses, which appear upon En-years it has been in use in relation to the gineer Ryan's estimate as supported by the evidence, in the sum of $5,150. It is conceded by respondents that the reasonable cost of such preliminary work of preparing for the construction of such a water system is a proper charge in estimating its reconstruction value. No specific allowance is made for this cost in the report of Engineer Faude for the commission. Such report, however, contains an estimate under the caption of overhead expense, for administration, engineering, interest, and incidentals. If there is room for reasonable allowance on this claim for preliminary expenses in this overhead estimate and there appears to be it will be presumed in support of the finding of the commission that it was so included. It is not important, however, in this instance to determine just how the results are attained, as it seems to be conceded that the amount that would be allowed for depreciation in the present case is less by the sinking fund than by the straight-line method, and it is claimed that the commission has erro its appraisement under consideration, to petitioner's prejudice. [6] Petitioner argues that such a method of classification is contrary to the rule of the commission as established in its "Uni-neously followed the straight-line method, in form Classification of Accounts for Water Corporation," and quotes from such classification that organization charges shall be charged to "intangible capital." It must be remembered, however, that this estimate and report of the engineer is not a finding of the commission, but evidence that was before it, and in construing his report it was privileged to get out of his estimates whatever he may have put into them under whatever classification he may have used. It is claimed by respondents that it is customary practice to include preliminary organization costs as overhead expenses in such estimates as this, citing Des Moines Gas Co. v. Des Moines, 238 U. S. 153, 35 Sup. Ct. 811, 59 L. Ed. 1244, where the master in chancery who heard the case says that time and money expended in the promotion of the enterprise, the organization of the company, legal expenses, preparing plans and specifications, etc., are properly termed "overhead charges." Assuming that the Railroad Commission reached its conclusions by the straight-line method, which assumption rests in turn upon the claim that the commission followed the method of its own engineer rather than that of petitioner's engineer in this respect, which is not clear from the record, was it an error in the exercise of its jurisdiction? The law has not settled the question, and the expert witnesses seem to disagree. Two of the engineers used the straight-line method, and supported their actions by their expert opinion that the method was proper and fair. Counsel for petitioner cites instances from other investigations of public utility values where the commission adopted the sinking fund method, and quote from an opinion of Commissioner Thelen, in the matter of the application of the City of Palo Alto, etc., 11 C. R. C. R. 209, which was a proceeding un (203 P.) der section 47 of the Public Utilities Act, as ination as can be made the prospective life follows: of the commodity, and apportion the depre California public utility cases are cited as ciation according to its age. The following upholding the straight-line method: Southern California Edison Co. Case, 11 C. R. C. D. 83; Marin Water & Power Company v. Railroad Comn., 6 C. R. C. D. 507, 520; "I have been much impressed by the gas company's argument that in view of the fact that in a rate case the depreciation annuity in this state must be estimated on the sinking fund basis (section 49, Public Utilities Act; Town of Antioch v. Pacific Gas & Electric Company, vol. 5, Opinion and Orders of the Railroad Northern California Power Co. Case, 17 C. Commission of California, pp. 19, 39, 40), the same basis should be applied, in depreciating the property, in an eminent domain proceeding. While not intending to lay down any rule which must be uniformly followed hereafter by this commission, I have given due weight to the gas company's contention on this point." R. C. D. 98. Respondents also quote from the case of National Telephone Company, Ltd., v. Postmaster General, 16 A. T. & T. Co. Com. L. 491, Jan. 13, 1913; 2 Whitten's Valuation of Public Service Corporations, page 1112, as follows: "Two methods of depreciation have been put before us, and two different ways of regarding the life of the plant. The two methods have been described as the sinking fund method, which has been put forward by the company, and the straight-line method, which has been put forward by the Postmaster General. "The sinking fund method is based upon the interest. of compound * This seems to me to be purely a revenue question, and to have nothing to do directly with the value of the plant as between a vendor and It is obvious that this matter of deprecia-a vendee. It was admitted by the very eminent tion, particularly in a property which is mostly underground and not open to careful inspection, must be largely a matter of estimate and speculation, based upon common observation and experience under similar conditions. It is a matter of approximation at the best, and to the lay mind it would appear that the straight-line method, based upon the proportionate part of the estimated life of the system which has expired rather than the sinking fund method or any of its modifications, is the appropriate basis for fixing depreciation for the purpose of determining present value of the utility. It will be noticed that the learned commissioner does not attempt to announce any rule of law or established method of engineering computation as governing this method of determining depreciated value, and it is not apparent whether the use of one or the other of these recognized methods should be gov-effect erned by physical conditions of the public utility which the evidence in the particular case might develop. A distinction may be drawn and has been frequently recognized between a rate-paying appraisement of a public utility and an appraisement of value to determine its worth in condemnation proceedings, in the application of one or the other of these methods of fixing the depreciation. In rate fixing the end sought is a reasonable return to the public utility for its use in the public service. Such reasonable return logically should be upon a basis that will pay a certain profit and replace the property at the end of its life. The sinking fund method is commonly used in such connection. In condemnation proceedings a different end is sought. Past costs or future replacements are only pertinent as a means to the end of determining present value in such proceedings. witnesses called for the company upon this [9] As to the final objection discussed by petitioner, the alleged failure of the commission to follow the evidence as to going concern value, it is conceded that some allowance was made on this claim. As has been said of all other segregated items, we find, nothing in the record to determine what portion of the $52,000 appraisement was allotted to this claim under the general finding of the commission. Engineer Faude did not make any allowance for going concern value in his estimate, and under petitioner's theory that the $52,000 total allowed in the findings was made up of the items specified by Mr. Faude aggregating $51,063, and an additional amount of $937 thrown in for good measure, it is assumed, that the going concern value, if any, was confined to all or part of this latter amount. Conceding this to be the fact, the commission must necessarily have considered the matter, and reached a conclusion thereon. It cannot be said that there was no evidence to sustain this allowance, even if confined to the amount conceded. If the actual physical condition could be determined by actual test and inspection, that, of course, would give the most satisfactory results; but, in the absence of such direct appraisement, the natural method It is true that Mr. Ryan, for the petitionwould seem to be to ascertain from the life er, estimated the going concern value at $13,tables of such utilities and from such exam- 500, and Mr. Givan estimated it at $3,000, but Mr. Faude made no allowance for this item, and stated in his testimony: "My investigations did not convince me there was very much going concern value there." It seems to have been conceded that the plant had not been on a profitable basis, and Mr. Ryan, in explaining his views in that particular, stated that he felt "that the company should not be at this time barred from any hope of ever realizing any going concern value by condemnation proceedings," and that "the effect of condemnation would be to deprive the company of the expectation of ever realizing anything from the money expended." Going concern value is speculative enough when based upon past achievements, but when it depends upon future developments it becomes largely conjectural. The city of Auburn is a small town with no great realization in growth of population in the past, nor expectation for the future. Its water distribution must be more or less of fixed quantity with no great hope of expansion. Even if the commission fixed the going concern value of this plant within the $967 allowance, we cannot say that it "has not regularly pursued its authority" in this respect. All of this discussion of the items of valuation covered by the general finding of the commission has been predicated upon the assumption that the commission accepted and followed the estimate of Engineer Faude as to the elements of valuation placed upon the concomitant parts of the plant. As already suggested, the only foundation for such a conclusion is the fact that the appraisement of the commission adopts approximately the same valuation as is reached by the aggregate of the estimates of separate elements of the system by the engineer. In support of this theory counsel for petitioner produce in their brief a memorandum prepared by Mr. Faude, which they state was handed to them subsequent to the original decision, by one of the commissioners, and which it is asserted shows in detail the manner in which the finding of the sum of $52,000 was reached. This memorandum adds nothing to the explanation of the commission's appraisement which was not already obvious, namely, that the commission added a certain sum to Mr. Faude's totals of $51,353, which, as the report states, was then "rounded off to $52,000," as a "reasonable value for sale purposes, including going concern value and all intangibles as of April 30, 1920." This was by the amended decision adopted as the value as of the date May 10, 1918. As to how the various elements of value were considered and distributed by the commission to make up this total does not appear. Even accepting this report as part of the record. It may be properly assumed in support of the decision of the Railroad Commission, which is entitled to every presumption in its 191(4) (Supreme Court of Idaho. Dec. 31, 1921.) 1. Indictment and information Charge of assault with intent to murder does not necessarily include assault with deadly weapon, or with force likely to produce great bodily injury. An information, charging an assault with attempt to commit murder, does not necessarily include an assault with a deadly weapon or instrument, or an assault by means and force likely to produce great bodily injury. 2. Indictment and Information 188-Charge of assault with a club held not to charge assault with force likely to produce great bodily injury. An information, charging an assault with intent to commit murder by then and there striking, hitting, and beating a person with a heavy stick or club, does not charge an assault with means and force likely to produce great bodily injury. 3. Indictment and Information 62-Information must state facts clearly and distinctly. An information, to be sufficient, must state the facts clearly and distinctly. It is not sufficient that the facts appear by inference or argument. 185-De 4. Indictment and Information A defendant in a criminal action cannot be convicted of a crime not necessarily included in the information. McCarthy, J., dissenting. Appeal from District Court, Washington County; B. S. Varian, Judge. Phumn Singh was convicted of assault by means and force likely to produce great bodily harm, and he appeals. Reversed, and new trial ordered. Lot L Feltham, of Weiser, for appellant. Roy L. Black, Atty. Gen., and James L. Boone, Asst. Atty. Gen., for the State. RICE, C. J. The information in this case charged that— For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (203 P.) "In the county of Washington, State of Ida- It was held that the information was not ho, on or about the 23rd day of August, 1920, sufficient to designate the crime of assault said defendant, Phumn Singh, then and there by means likely to produce great bodily inbeing did assault with intent to kill and mur- jury. The court said: der one Parker Gundo, he, the said defendant, having the present ability so to do, by then and there striking, hitting, and beating said Parker Gundo with a heavy stick or club, all of which said defendant did knowingly, unlawfully, willfully, feloniously, and with malice do," etc. "A heavy wooden stick' is not ex vi termini a deadly weapon or a deadly instrument. Nor does this description suffice to show that it is either. Neither, as described, is it necessarily a means likely to produce great bodily injury." C. S. § 8827, provides that an indictment must be direct and certain as it regards the circumstances of the offense particular The facts must [4] In instruction No. 3, the court told the jury that they might return a verdict of guilty of assault by means and force likely charged, when they are necessary to constito produce great bodily injury, if in its judg-tute a complete offense. ment the evidence justified such a verdict. [3] An information is not sufficient which To that instruction appellant excepted. The states facts inferentially. jury returned a verdict of guilty of assault be clearly and distinctly stated. People v. by means and force likely to produce great Robles, 117 Cal. 681, 49 Pac. 1042; People v. bodily harm. Cohen, 118 Cal. 74, 50 Pac. 20; People v. Simpton, 133 Cal. 367, 65 Pac. 834; U. S. v. McConaughy (D. C.) 33 Fed. 168; State v. Divoll, 44 N. H. 140. C. S. § 8997, provides: “The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense." Appellant contends that the offense of which he was found guilty is not included in the information. [1] In the case of In re McLeod, 23 Idaho, 257, 128 Pac. 1106, 43 L. R. A. (N. S.) 813, it was held that the crime of assault with a deadly weapon or instrument is not necessarily included in the statutory definition of murder. In the body of the opinion the court said: In this case, the information not having charged the crime of assault with intent to commit murder by means and force likely to produce great bodily injury, the conviction cannot be upheld. The judgment is reversed, and a new trial ordered. DUNN and LEE, JJ., concur. "So, in the present case, the information might have charged the crime of murder in the language of the statute, or the information might have charged murder by an assault upon the person of another with a deadly weapon or instrument. In the first charge the defendant could be found guilty only of murder in (Supreme Court of Idaho. one of the degrees specified in the statutemurder in the first degree, murder in the second degree, or manslaughter, if the evidence warranted such a finding. In the second charge, the jury could have found the defendant guilty of murder in any of the degrees, and also of the crime of assault with a deadly weapon or other instrument, if the evidence warranted such finding." (34 Idaho, 765) TESTO v. OREGON-WASHINGTON R. & NAV. CO. (No. 3398.) [2] The information in this case did not charge an assault with intent to commit murder by means of a deadly weapon or instrument, or by any means and force likely to produce great bodily injury. In the case of People v. Perales, 141 Cal. 581, 75 Pac. 170, the information charged that The defendant "did unlawfully and feloniously commit an assault upon the person of J. M. Soto, by means likely to produce great bodily injury, to wit, with a heavy wooden stick." Dec. 31, 1921.) 1. Trial 165-Motion for nonsuit admits the truth of plaintiff's evidence and of every reasonable fact it tends to prove. A motion for nonsuit admits the truth of plaintiff's evidence and of every fact which it tends to prove, or which could be gathered from any reasonable view of it, and he is entitled to the benefit of all inferences in his favor which the jury would have been justified in drawing from the evidence had the case been submitted to it. 2. Negligence 136 (26)-Contributory negligence question for jury. Contributory negligence is generally a question of fact for the jury, and only becomes one of law when the evidence is reasonably susceptible of no other interpretation than that the conduct of the injured party contributed to his injury, and that, because of his negligence and carelessness, he did not act as a reasonably prudent person would have acted under the circumstances. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |