The Montgomery advertiser., 1908-12-01
HIGH COURT REVERSES
 VIRGINIA RATE CASE

Ian declared that the bill ought to have bee6 dismissed.
 The railroads claim that they are practically given every substantial right which they contend for.
 The courts action in reversing the Circuit Court was based on the fact that the roads had failed to appeal to the State Supreme Court before invok- ing the interrogation of the United States Circuit Court. On this point Justice Holmes said:
 Consideration of comity and con venience have led this court ordinarily to decline to interfere by habeas cor pus where the petitioner had open to him a writ of error to higher court of state in cases where there was no logical reason for refusing the writ. The question Is whether somewhat similar considerations ought not to have some weight here.
 d We admit at once that they have not the same weight in this case. The question to be decided, we repeat is Legislative, whether a certain rule shall be made. Although the appeal is given as right, 1t Is not a remedy, properly so-caiied. At that time no case exists, We should hesitate to say. as a general rule. that a right to resort to the courts could be made aI- ways to depend upon keeping a previ- ous watch upon the bodies that make laws, and using every effort and all the machinery available to prevent un- constitutional laws from being pass ed.
 This case hardly can be disposed of on purely general principles. The question that we are considering may he termed a question of equitable fit- ness. or propriety. and must be an- swered in the particular facts The establishment of railroad rates is not like a law that affects private persons who may never have heard of 1t till 1t was passed. It Is a matter of great in- terest, both to the railroads and to the public, and is watched by both with serutinizing care. The railroads went into evidence before the Commission They very we'll might have taken the matter before the Supreme Court of Appeals. No new evidence and no great additional expense would have been
 Statute of Limitationa.
 Referring to the possibility of the case being barred in the State Supreme Court by the statute of limitations, the opinion said: a1
 I've express no opinion upon the matter. which is for the State tribunals to decide. but simply notice a possibil- ity. If the present bills should be dis missed. and then more possible conclu- sion reached. injustice might be done As our decision does not go upon a de- nial of power to entertain the bills al the present stage. but upon our views as to what is the most proper and or- derly course in cases of this sort when practicable, 1t seems to us that tlie bills should be retained for the pres. ent to await the. result Of the appeal fl the companies see nt to take them. II the appeals are dismissed as brought too late, the companies will be entitled to decrees If they are entertained and the orders of the Commission affirmed the. bills may be dismissed without prejudice and filed again.
 In his dissenting opinion. Justice Harlan said:
 "In my judgment. the Virginia State Corporation Commission is State Court within the meaning of Section 720. of the revised statutes. If the final action of that Commission in any case of rate making should be con6sca. tory. and. therefore, liable to the obtec. tion that by its operation 1t will amount to the taking of property fos public use without just consideration and therefore, without due process of law, and if such action should upon appeal be approved by the highest court of Virginia, then that question could be brought here upon a writ of error, end thereby any rights secured to the az. grieved party by the Constitution oE laws of the United States could be rec ognized and fully protected in our final judgment. The way is open. under the law creating the Commission, for .hs protection ultimately by this court Of any right especially set up and claimed which that tribunal may violate or re. fuse to protect. am of the opinion that the Judgment should be reversed with instructions to dismiss tha ., |, brought in the Circuit Court of .hS United States" '"S