rightfully asserts jurisdiction over Huber's sales to Northern.
Huber makes further contentions, none of which I find supportable now. It is said that no matter the extent of jurisdiction under 1(b), the Commission is precluded from applying Section 7(b) to Huber's proposed abandonment of its sales to Northern because 7(b) requires Commission approval of abandonment only where the abandonment is to be of 'facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities' and that Huber has no facilities 'subject to the jurisdiction of the Commission'. There are two short answers to this contention. First, the Supreme Court has already intimated that the application of 7(b) is as broad as the jurisdiction of the Commission under Section 1(b). Federal Power Commission v. Panhandle Eastern Co., 1949, 337 U.S. 498, 507-509, 69 S. Ct. 1251, 93 L. Ed. 1499. Second, this Court has already held that Huber's sales to Northern are within the Commission's jurisdiction and since a sale of natural gas cannot be made without the use of facilities, power to control the sale includes power over facilities and thus Huber does have 'facilities subject to the jurisdiction of the Commission' within the meaning of 7(b). See Hartford Electric Light Co. v. Federal Power Comm., 2 Cir.1942, 131 F.2d 953, certiorari denied 1943, 319 U.S. 741, 63 S. Ct. 1028, 87 L. Ed. 1698.
In the course of its argument Huber poses the broad question of whether or not the Commission has power under Section 7(e) of the Act, 18 U.S.C. § 717f(e), to issue a certificate of public convenience and necessity to one who is a private person and not a public utility and who is unwilling to accept Commission jurisdiction. But Huber is not in this position. Of course one not already subject to the jurisdiction of the Commission may make a voluntary choice whether he will perform acts which, in turn, will subject him to the power of the Commission. As has been shown, Huber engaged in conduct which has brought it within the jurisdiction of the Commission.
Huber also claims that any construction of the act that would permit the Commission to apply the power delegated to it to prevent the abandonment of sales under 7(b) to the Huber-Northern sales would lead to a violation of the Fifth Amendment. These contentions need not be discussed, for they are premature. It is settled that a Federal Court possesses jurisdiction to adjudicate a constitutional controversy '* * * only when the interests of litigants require the use of this judicial authority for their protection against actual interference.' United Public Workers v. Mitchell, 1947, 330 U.S. 75, 89-90, 67 S. Ct. 556, 564, 91 L. Ed. 754. (Emphasis added.) Where there is a possibility that a case may be disposed of on non-constitutional grounds, constitutional adjudication must be deferred. Alma Motor Co. v. Timken-Detroit Axle Co., 1946, 329 U.S. 129, 136-137, 67 S. Ct. 231, 91 L. Ed. 128. The Commission has not yet applied 7(b) to Huber's activities; indeed, it may never do so. All the Commission asks, and all that this Court holds, is that the Commission has power to determine whether or not Section 7(b) should be utilized. Once the Commission has made a final determination, Huber may find itself free and without a constitutional issue to litigate, and if it has one, it will be clearly defined and not hypothetical. See Aircraft & Diesel Corp. v. Hirsch, 1947, 331 U.S. 752, 772-773, 67 S. Ct. 1493, 91 L. Ed. 1796.
Huber insists that the Commission cannot lawfully 'require the continued delivery of natural gas by a producer or gatherer under circumstances which render such delivery illegal under the Natural Gas Act because neither the facilities owned by the producer or gatherer and used to deliver the gas, (Huber) nor the facilities owned by the interstate pipeline used to receive the gas and deliver it to the main system (Northern) can be properly or are in fact certificated under Section 7 of the Natural Gas Act (15 U.S.C. § 717f(c))'. Whether the facilities 'can be properly * * * certificated' is an issue for the Commission's primary adjudication. Aircraft & Diesel Corp. v. Hirsch, 1947, 331 U.S. 752, 67 S. Ct. 1493. Even assuming arguendo that neither Huber's nor Northern's facilities are certificated (there is controversy as to whether Northern has been certificated) Huber is not aided thereby. Section 7(c) of the Act which requires certification places a duty to be certificated upon natural gas companies. It does not purport to diminish the jurisdiction of the Commission under Section 1(b). Furthermore, it is almost too plain to require statement that Huber should not now be permitted to take advantage of its or Northern's past failure to obtain certification if 7(c) required it. The plea that if the Commission orders Huber to continue its sales to Northern, the Commission will be ordering an act in violation of 15 U.S.C § 717t, under which criminal liability might be imposed upon Huber, does not insulate Huber from an order by the Commission denying abandonment of its sale to Northern if the Commission has jurisdiction under Section 1(b).
Huber will be enjoined from discontinuing its sales for resale to Northern pending final Commission decision on the issue of whether or not Huber should be permitted to abandon its sale under Section 7(b) of the Natural Gas Act, 15 U.S.C. § 717f(b).
The foregoing shall be regarded as providing findings of fact and conclusions of law as required by Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.
An order in conformity with this opinion shall be submitted by the plaintiff for settlement on notice to the defendant.