The Montgomery advertiser., 1908-12-01
RAILROAD COMMISSION NOT
 A COURT WHEN MAKING RATE
Railroads Mast Take Case to State
 Supreme Court.
Justice Holmes Hold. That . Commits s,on Acts Only xeginiativeiy and az therefore Not Beyond
 Raach of Fsaeral
 Courts.

- wash,nrton. Nov. So.-Justies x1a,r,a. today announced the decision, ae inc Supreme Court of the United St.tas in the case of the Virginia ssiiroa1a awainst the State Corpora ,so, romnnission of Virginia. calling into question the order ot the com mission fixing a uniform rate oI Lwo cents a mile for carrying passeheete in the state. s...su,oav,, of the United States Circuit Court TOT fha Eastern District of Virginia put only on the narrow ground that Lne railroad should have appealed rom inc commissions order to the snpretho Court of Virginia before seeking the intervention of the Federal courts
 T. sfSect the court directs that the railroad companies shall take helr cssa I'd the State court of last resort and that in order to prevent fnJusIee through the possible application or the statute of Limitations, the case snaA he retained on the docket or yne ohi. ted States Circuit Court by Wnicn ie was. originally decided faVofaolS 'o the roads. -- =. + is not the intention of the decision that the railroads should resort 10 tne VirSinia Supreme Court of Appeals and after It's decision is rendereo, ap- neal to the Federal Supreme Coule, but that if the verdict of the Vireln,a court is not satisfactory the foaos may resume the proceedings in the limited states Circuit Court. On this point the court said;
 aTf inc rate should be affirmed by the Supreme Court of Appeals and the rafiroads still should regard tt as con- fiscatory, they will be at liberty Lo renew their application to the circuat ca,,rt vvithout fear oe, being met by a nlea of8res ad5udicata. It will not ! hs necessary to watk For proeecutson by the commission. ,.
 In this case, the virginia comnnis- sion had fixed rate of two cents per mile and was proceeding 10 pup Iiah the rate, and was taking the tni- tfaI sfeps to enforce it. Thereupon fine railroads went into the Circuit Court, of the United States and ob- tained an injunction against the com mission enforcing the rate on the ground that it was oonfiscatory.
 To the bill in this ease, the mem hers of the Virginia commission de- murred. not raising the question of inc merits of the two cent rate, but clainninr that the commission in nx- ing the rate had exercised the author itv and Jurisdiction of court ana that it's order was, therefore. res ao- tudicata and could not be inquired into or interfered with by the Circuit Court of tha United States. It therefore de- nied the Jurisdiction of the Circuit Court of the United States to inquire into and enJoin the rate, even though it might be confiscatory.
 Acts Only LegisIatfvely.
 The Supreme Court overruied this contention, holding that the commits sion is not court when making rate. but is acting legislatively, and that it's action Is not res adjudicata, and is not beyond the reach of the Federal courts, if it violates any pro- vision of the Constitution of the Uni- ted States. Under the Virginia sys- tenn, however, an appeal Is given as of right from the action of the com mission making the rates to the Su- preme Court of Appeals of that State. The decision further held that the action of the Court of Appeals of Vir- ginia on such appeal from the conn mission in making the rate is itself Legislative and not judicial, and that 1t likewise is subject to be- inquired into, and if 1t violates. any constitu- tional right of the carrier, is subject to be enjoined in the circuit court of the United States.
 The Supreme Court further held. however. that as the State of Virginia, had given this right of appeal from the COIlunlEeiOns uuA1 Ac8AStdL1NG words of the State in respect to the rate is not said until the State Court of Appeals says 1t and under these circumstances, it Is proper for the car Tier before going into the Federal court to see if the State Court of Ap- peals acting legislatively. will not cor rect the wrong of the commission, which is complained of, and that if it refuses to correct the rate, it then will be time for the carrier to come ito the Circuit Court of the United states to enjoin the rate which is com plained of as confiscatory.
 The Supreme Court further holds that the action of the state court of appeals being legislative. and not judicial the remedy need not be pur- sued of taking the case to the su- preme court of the United States from the highest court of the state by writ of error, because the action of the highest court of the state e is not a judicial action, but Is legislative, and of the United States in a proper case.
 Must Retain Case.
 The United States Supreme Court, therefore, while reversing the decision of the court below. ordered that the bill be retained in the circuit court to see what the court of appeals of Vir- sinia will do when an appeal is taken 10 it. and if it is now too late to take an appeal, the order of the United states Circuit court enjoining the Vir- einfa Commission must be affirmed If the court of appeals of Virginia however entertains the appeal. the railroads would have the right to pro- ceed in the circuit court of the United States to question the validity of any order of the Virginia court of appeals as contrary to the constitution of the Emitted States and need not come from the Virginia court of appeals by writ of error to the Supreme Court of the United States.
 The chief justice and Justice Harlan eoncurred in the result. but dissented from the reasoning. They held that the contentious of the Virginia com s,ns-sior vyers correct and Justice Har-