The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1908-12-01
THE STATE COMMISSION
ACTS LEGISLATIVELY
Gases Are Retainoed in Circuit Court
Against Possible Dismissal in
State Courts on Plea of
Limitation.

Washington, November so-Justice
Holmes today announced the decision of
the supreme court of the United States in
the case of the Virginia railroads against
the state corporation commission of Vir-
ginia, calling into question the order Of
the commission fixing a uniform rate of ?
cents a mile for carrying passengers III
the state.
The decision reversed the Judgment of
the United States circuit court for the
eastern district of Virginia, but only on
the narrow ground that the railroads
should have appealed from the commits
sions order to the supreme court of yn-
ginla before seeking the Intervention of
the federal courts. In effect the court
directs that the railroad companies take
their case to the state court of last re-
sort and that, in order to prevent injus-
tiee through the possible application of
the statute of limitations, the case be re-
tanned on the docket of the United States
circuit court, by which 1t was originally
decided favorably to the roads.
1t is not the intention of the decision
that the railroads should resort to the
Virginia supreme court of appeals. and
after its decision is rendered appeal to
the federal court, but that if the verdict
of the Virginia court is not satisfactory,
the roads may resume the proceeding in
the limited States circuit court On this
ftlit the court sai5:
III the rate should be affirmed by tile
supreme court of appeals. and the rail-
ol,n o,rJ de,
they will be at liberty to renew their ap-
plieation to the circuit court without fear
of being met by plea of res adjudicata.
1t will not be necessary to wait for pros
ecution by the commission"
In this case the Virginia commission
had fixed a rate of cents per mile and
was proceeding to publish the rate. and
was taking the initial steps to enforce it.
Thereupon the railroads went into the
circuit court of the United States and OBJ
tained an injunction as against the COM
mission enforcing the rate, as 1t was
conf1scatory. According to the bill the
members of the commission demurred,
not raising the merits of the 2-cent rate,
but claiming that the commission in fix
ing the rate had exercised the authority
and jurisdiction of court and that it's
order was, therefore, res adjudicata and
could not be inquired into or nterfered
with by the circuit court of the United
States. 1t therefore denied the jurisdic-
tion of the circuit court of the United
States to inquire into and enjoin the rate,
even though 1t might be eonfiscatory.
The supreme court overruled this con-
tention. holding that the commission is
Not hi hut
acting legislatvely, and that its action
is not res adjudicata and Is not beyond
the reach of the federal courts If 1t vio-
lates any provision of the constitution
of the United States. Under the Vir-
ginia SYSTEM however, an appeal is given
as of right from the action of the COM
mission making the rate to the supreme
court of appeals of that state.
Decision Is Legislative.
The decision further held that the action
of the court of appeals of Virginia ON
such appeal from the commission in MAX
ing the rate is itself legislative and not
judicial and that it likewise is subject to
be inquired into, and II 1t violates any
constitutional right of the carrier is SUBJ
ject 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 ap-
peal from the commission the final leg
islative words of the statute in respect to
the rate are not said until the state court
of appeals says them, and that under
these circumstances it is proper for the
carrier 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 IL 1t refuses to
correct the rate. 1t then will be time for
the carrier to come into the circuit court
of the United States to enjoin the rats
which is complained of as confiscatory
The supreme court of the United States
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 supreme
court of the United States from the fur
therest court of the state by writ of err
ror, because the action of the highest
court of the state Is not a judicial action,
but is legislative, and many be enjoined
In the circuit court of the United States
In proper case.
Bill Is Retained.
The United States supreme court, there
fore, 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 Virginia will do
when an appeal Is taken TO II, and II
it Is now too late to take an appeal, the
order of the United States circuit court
enjoinng the Virginia commission must
be affirmed. If the court of appeals OF
Virginia, however. entertains the appeal,
then the railroads would have the right
to proceed III 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
United States and need not come from th6>