New-York tribune., 1908-12-01
NOT COURT
RAILROADS WIN POINT.
Tireinia Ttco-Cent Rate Case Sent
Back to State Tribunal.

Washington. Nov. 3o.-Justce Holmes announced
to-day the decision of the Supreme Court OF the
United States in the Of the Virginia railroads
against the State Corporation Commission OF Viz
ginia calling into question the order or the com
mission fixing uniform rate of two cents mile
for carrying passengers in the state.
The decision reversed the judgment of the United
States Circuit Court for the Eastern Dlstrlct OF
roads should have appealed from the commission
order to the Supreme Court of Virginia before
seeking the intervention Of the federal courts
In effect the court directs that the railroad COM
panies take their to the state court OF last
resort, and that in order prevent injustice
through the possible application of the statute Of
limitation the be retained on the docket
the United Circuit Court. by which it was
originally decided favoraby to the roads
The Virginia commission had fixed a rate OF two
cents mile, and proceeding to publish the
rate and taking steps enforce it. Thereupon the
railroads went into the Circuit Court Of the United
States and obtained injunction against the COM
mission the ground that the rate was conhs-
Catory. The commission demurred, not raising the
question of the merits of the 2-cent rate. but as
serting that in fixing the rate II had exercised the
authority and jurisdiction a court, and its order
was therefore, adjudicata, and could not be
inquired into interfered with by the Circuit
Court OF the United States.
The Supreme Court overruled this Contention,
holding that the commission is not court when
making rate. but Is acting legslatively and that
its action is not res adudiCaa and not beyond the
reach of the federal courts If II violates pro-
vision Of the Constitution OF the United States
Under the Virginia system, however, an appeal Is
given Of right from the action Of the commits
sion to the Supreme Court of Appeals of the state
The Supreme Court further held that -hC State
Of Virginia had given appeal of right from
the Commission to the Supreme Court OF appeals,
the final legislative word Of the state is not said
until the state Court of Appeals says II and
that the action of the state Court Of Appeals in
dons So being legislative and not judicial the
result may be inquired into, and if the rate is
confscatory the order may he set aside by the
Circuit Court of the United States from which the
case may be brought by orderly appeal 10 the
Supreme Court of the United STATES. Tho Supreme
Court. therefore while reversing the decision of
the court below orders that the bill be retained in
the Circuit Court TO what the Court OF Appeals
will co when appeal is taken to II, and + 1t is
now too late to take appeal the order Of the
United States Circuit Court enjoning the Commits
sion must be affirmed. If the court Of Appeals Of
Virginia. however, entertains the appeal, then the
railroads have the right to proceed in the Circuit
Court of the United States to question the valid
ity of the order of the Virginia Court Of Appeals
contrary to the Constitution of the United States
and need not from the Virginia Court Of APP
peals by writ of to the Supreme Court of
the United States.
The Chief Justice and Justice Harlan concurred
in the result. but dissented from the easoning
They held that the contentious OF the Virginia
commission correct, and Justice Harlan de-
clared that the bill ought to have been dismissed
The railroads say that every substantial right
they contend for is given TO them.