New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1908-12-05
. acoTBT REVIEW" T4NGLE.

Tho norsnapers of Virginia much
wrought I'D over the recent decision OF me gu
nreme Court in the railroad rate case tnsteau
Of accepting the sending Of the case .Pack 10
the Virginia court for decision before the teu-
oral courts should pass upon it vindicaton
Of the Southern contention and. as most OF the
New York newspapers took it to be, haPp!
solution of the everlasting conflict of jurisdic-
tions between the federal and the state courts,
the VirginiaDS are distressed by the fact to
which The Tribune called attention at once
that under the Supreme Courts ruling inferior
federal Judges will now take cognlzance OF
cases on which Nirginia'S highest court has al
ready passed. The thought that a lower federal
Judge should now be able 10 enjoin the carry
ing out of a decision OF Nirginia's Supreme
Court is peculiarly annoying TO the Southerner,
with his idea of states rights. But that result
is unavodahl bic under the logic of the Supreme
Courts decision. The Virginia Supreme Court
Of Appeals in reviewing 4 rate fixed ny the
Corporation Commission will act not iudicially
but ''legisativey." There is. naturally. no APP
peal from a Legislative" action of states
highest court to the Supreme Court of tho
United States. Judicial consideration Of If must
originate in one Of the lower courts. IF the
Nirginians wish 70 avoid what seems to them
the humilia tion of having their highest courts
actions the subject Of reconsidera ton in lower
federal courts. they should cut the court re
view" provision ont of their public service law.
The more the Supreme Courts decision is
considered the less remarka BILE It appears odd
as il did seem at first to contemplate 4 court
acting legSlatively." We have only to go back
10 the debate on the court review" provision
in this states Public Service Commissions law
10 that the Supreme Court has taken the
same position regarding the effect of such q
provision that held by those who success
fully opposed its insertion in New York's law,
ourselves among the number The directors
10 the court review provision maintained that
without it the courts would still have authority
TO examine into every judicial question that
would arise under the act. But the commits
sion's functions. they declared. were chiefly
administrative and legislative ana to provide
that every act Of the commission should be sub
iect TO a court review would he to impose
upon the courts duties and confer upon them
functions that were not judicial. but legislative
or administrative. Now. Virginia did what this
state wisely decided not TO do-that is il pro
vided for specific court review" thus con
ferriug upon the Virginia Supreme Court Iegis-
lative and administrative functions. And the
United States Supreme Court has decided that
in performing one Of them the Virginia court
acts legislatiVelF." being for the nonce Il mere
corporation commission Of final resort
It is a nice question. too. whether the court
review provision in the Virginia law does not
Pu' =" certain claSs 81 questions entirely outside
of the purview OF the Virginia courts as courts
pure and simple When the highest court in the
state sits 'legislativeIy' upon certain aues-
ton il cannot very well sit "judcfaIIv"- unon
1t-take it up in the ordinary wav Of a court
OF course this is purely technical question. of
no practical Importance except as il affects
procedure but is there any state court in Yir-
gInIa 10 consider rate fixed by the Corporation
commission, purely as court not acting leg
lsiauvely With the final word Of the highest
court iegislative. where can judicial pro-
ce9uEe begln except outside Of the state court
system! Or could an inferior state court also
enjoin the action of the highest court in i+s
Legislative" capacity? When with the "cour+
review provision other than judicial functions
are conferred on the courts. evidently hone
less tangle results.