(40 Sup.Ct.) *simply a present cession, with a covenant for payment of the consideration thereafter, no mention being made of interest. Clearly, the provision of section 177, Judicial Code (Comp. St. § 1168), is applicable: fit," within the meaning of the jurisdictional respect to the land north of the line as to act. We affirm the allowance of this item. that south of it. In both cases there was *283 [7] Upon the cross-appeal, assignments of error are based upon the disallowance of interest. As to the $94,739.54 awarded for the land north of the dividing line in excess of 300,000 acres, it is contended that payment of this consideration was a concurrent condition of the passing of title to the United States, and as equity considers that as done which ought to be done the purchase money was, potentially, in the Treasury of the United States as a trust fund, and ought to be treated as if invested for the benefit of the Indians at 5 per cent. interest, under *282 Rev. Stat. *§§ 2095, 2096, and 3659 (Comp. St. §§ 4073, 4074, 6667), or, in the alternative, that the assumption by the United States of title to the land without compliance with the concurrent condition of payment to the Indians and its sale by the United States to settlers was a breach of trust, requiring the United States to account to the Omahas for the minimum sale price of $1.25 per acre. But the provisions of articles 1 and 4 of the treaty show that the theory that the passing of title was conditioned upon the payment of the consideration money, or any part of it, is untenable; hence there was no such trust as is asserted, and the price of the land was fixed by the treaty itself. By article 1 there was a cession in præsenti of the land south of the described line, with a proviso that if upon exploration the country north of the line did not prove to be a satisfactory and suitable location for the Indians the President might, with their consent, set apart and assign to them a suitable residence, in which case all of the country belonging to them north of the line "shall be and is hereby ceded to the United States by the said Indians, they to receive the same rate per acre for it, less the number of acres assigned in lieu of it for a home, as now paid for the land south of said line." By article 4 the consideration money for the principal cession was to be paid in the future, and either paid to the Indians direct or expended for their use and benefit from time to time, in the discretion of the President; and, by fair construction, the money that the Indians were to receive under article 1 for the additional cession of the land north of the line, in the event of such cession taking effect, was subject to the same terms as to payment, at least to the extent that it was for the President to determine in his discretion whether it should be paid in cash to the Omahas or expended for their benefit "from time to time." Clearly, an intent to defer passing of title until payment of consideration is negatived, and this as truly with "No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest." Tillson [8] It is contended, however, both as to the award for the excess land and as to another claim allowed, that as the jurisdictional act calls for the consideration of equitable as well as legal claims, the ordinary rule of equity ought to be followed as to the allowance of interest; Himely v. Rose, 5 Cranch. 313, 319, 3 L. Ed. 111, being cited. But the jurisdictional act cannot be regarded as taking the case out of the usual rule. v. United States, 100 U. S. 43, 46, 25 L. Ed. 543; Harvey v. United States, 113 U. S. 243, 249, 5 Sup. Ct. 455, 28 L. Ed. 987. Nor does United States v. Old Settlers, 148 U. S. 427, 13 Sup. Ct. 650, 37 L. Ed. 509, support the claim for interest, for there the particular question was a subject of difference in the negotiation that preceded the treaty; clause of the treaty itself provided that it should be submitted to the Senate of the United States for decision; the Senate allowed interest; and its determination was accepted by the United States as valid and binding. This court held that the decision of the Senate was controlling, and that therefore interest must be allowed upon that part of the claim to which it applied. See 148 U. S. 433, 449, 451, 452, 478, 13 Sup. Ct. 650, 37 L. Ed. 509. a The contention of claimant that the Court of Claims erred in not making a pecuniary award for the members of the Omaha Tribe killed by the Sioux is covered by what we have said to show that there was error in making an allowance for the horses stolen by the Sioux; the same treaty provision governing both claims. Other assignments are based upon the failure of the court to find certain facts in accordance with claimant's contention. These require no discussion, since our review is based upon the findings as made. *284 *The judgment will be reversed as to the sum of $4,560 awarded for horses killed by the Sioux Indians, and in other respects affirmed. Reversed in part; affirmed in part. Mr. Justice McREYNOLDS took no part in the consideration or decision of this case. (253 U. S. 206) strued to apply to this case is void under the FORT SMITH & W. R. CO. et al. v. MILLS Fifth Amendment to the Constitution. The et al. bill was dismissed by the District Court, on (Argued December 13, 1917. Decided June 1, motion, for want of equity, and the plaintiffs appealed. 1920.) No. 42. The Act in question, known as the Adamıson Law, was passed to meet the emergency MASTER AND SERVANT 69-INSOLVENT RAIL- Created by the threat of a general railroad ROAD'S WAGE AGREEMENT HELD NOT FORBID- The Act Sept. 3, 5, 1916 (Comp. St. §§ 8680a-8680d), providing that the compensation of employés of interstate railroads should not be reduced below the then standard and that time in excess of eight hours should be paid for pro rata, did not forbid the doing of work by mutual consent at a less price than the rates laid down, in the case of an insolvent road unable or barely able to pay its way without impairing the mortgage security, where the employés were not merely refraining from demands under the act but, appreciating the situation, desirous of keeping on at the rates fixed by agreement. Appeal from the District Court of the United States for the Western District of Arkansas. Suit by the Fort Smith & Western Railroad Company and another against Arthur L. Mills, receiver of the Fort Smith & Western Railway Company, and another. From a decree dismissing the bill, complainants appeal. Reversed. strike. It fixed eight hours as a day's work and provided that for some months, pending an investigation, the compensation of employees of railroads subject to the Act to Regulate Commerce should not be "reduced below the present standard day's wage," and that time in excess of eight hours should be paid for pro rata at the same rate. The time has expired long since but the rights of the parties require a decision of the case. In Wilson v. New, 243 U. S. 332, 37 Sup. Ct. 298, 61 L. Ed. 755, L. R. A. 1017E, 938. Ann. Cas. 1918A, 1024, it was decided that the Act was within the constitutional power of Congress to regulate commerce among the States; that since, by virtue of the organic interdependence of different parts of the Union, not only comfort but life would be endangered on a large scale if interstate railroad traffic suddenly stopped, Congress could meet the danger of such a stoppage by legislation, and that, in view of the public interest, the mere fact that it required an expenditure to tide the country over the trouble would not of itself alone show a taking of Messrs. A. C. Dustin and C. M. Horn, both property without due process of law. It was of Cleveland, Ohio, for appellants. Mr. Assistant Attorney General Frierson, for appellees. Mr. Justice HOLMES delivered the opin ion of the Court. This is a bill in equity brought by the Fort Smith and Western Railroad Company *207 *208 *held that these principles applied no less when the emergency was caused by the combined action of men than when it was due to a catastrophe of nature; and that the expenditure required was not necessarily unconstitutional because it took the form of requiring the railroad to pay more, as it might have required the men to take less, during the short time necessary for an investigation ordered by the law. But the bill in Wilson v. New raised only the general objections to the Act that were common to every railroad. In that case it and the trustee of a mortgage given to secure bonds of that road, to enjoin the receiver of the road from conforming to the Act of September 3, 5, 1916, c. 436; 39 Stat. 721 (Comp. St. §§ 8680a-8680d), in respect of hours of service and wages, and to enjoin the District Attorney of the United States from proceed-was not necessary to consider to what extremes the law might be carried or what ing to enforce the Act. The bill alleges that were its constitutional limits. It was not the physical property is worth over $7,000,- decided, for instance, that Congress could 000, but that no dividends ever have been or did require a railroad to continue in buspaid upon the stock, that no interest has iness at a loss. See Brooks-Scanlon Co. v. been paid upon the bonds since October 1, Railroad Commission of Louisiana, 251 U. S. 1907, and that there is a yearly deficit in 396, 40 Sup. Ct. 183, 64 L. Ed. —. It was not the earnings of the road. The receiver was decided that there might not be circumstancappointed in proceedings to foreclose the es to which the Act could not be applied conmortgage. The bill further alleges that the sistently with the Fifth Amendment, or that railroad now (1917) is being carried on under the Act in spite of its universal language an agreement with the men which the men must be construed to reach literally every desire to keep, but that the receiver, yield-carrier by railroad subject to the Act to Reging to the threats of the District Attorney ulate Commerce. It is true that the first to prosecute him unless he does so, purposes section of the statute purports to apply to substitute the much more onerous terms to any such carrier, and the third to of the Act. It is set up that the Act if con- the compensation of railway employees subFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) nity for submitting the utility's claim of confiscation to a judicial tribunal for a determination upon its own independent judgment as to both the law and the facts. ject to this Act. But the statute avow-, on a public service commission legislative powedly was enacted in haste to meet an emer- er to prescribe future rates chargeable by a gency, and the general language necessary public utility, it must provide a fair opportuto satisfy the demands of the men need not be taken to go further than the emergency required or to have been intended to make trouble rather than to allay it. We cannot suppose that it was meant to forbid work being done at a less price than the rates laid down, when both parties to the bargain wished to go on as before and when the circumstances of the road were so exceptional that the lower compensation accepted would not affect the market for labor upon other roads. 3. CONSTITUTIONAL LAW 298(1) PUBLIC SERVICE COMMISSIONS 2-STATUTE DENYING COURTS JURISDICTION TO EXERCISE INDEPENDENT JUDGMENT AS TO REASONABLENESS OF RATES DENIES DUE PROCESS. The Pennsylvania Public Service Company Law, construed by the state Supreme Court as withholding from the courts power to determine the question of confiscation according to But that is the present case. An insolvent their own independent judgment, on an appeal road had succeeded in making satisfactory | from the Public Service Commission's order *209 terms with its men, enabling it to go on, barely paying its way, if it did so, not without impairing even the mortgage security, not to speak of its capital. We must accept the allegations of the bill and must assume that the men were not merely negatively refraining from demands under the Act but, presumably appreciating the situation, desired to keep on as they were. To break up such a bargain would be at least unjust and impolitic and not at all within the ends that the Adamson Law had in view. We think it reasonable to assume that the circumstances in which, and the purposes for which the law was passed import an exception in a case like this. Decree reversed. Mr. Justice DAY, Mr. Justice VAN DE VANTER, Mr. Justice PITNEY and Mr. Justice McREYNOLDS agree with this decision limiting the effect of the Adamson Law as stated, but adhere to the views concerning the constitutionality of the Act expressed by them in Wilson v. New. (253 U. S. 287) OHIO VALLEY WATER CO. v. BEN AVON (Argued Oct. 15, 1919. Restored to Docket No. 128. 1. WATERS AND WATER COURSES 203(6)-ORDER OF COMMISSION PRESCRIBING RATES FOR WATER IS LEGISLATIVE IN CHARACTER. An order of a state public service commission, prescribing a schedule of maximum future rates chargeable by a water company, is legislative in character. 2. CONSTITUTIONAL LAW 298(1)-DUE PRO- fixing rates, denies due process of law, unless it clearly authorizes some other proceeding in which the order may be challenged as confisca tory. 4. PUBLIC SERVICE COMMISSIONS 21PUBLIC UTILITY HELD NOT TO HAVE LOST RIGHT TO JUDICIAL DETERMINATION BY APPEALING, INSTEAD OF ENJOINING ORDER OF COMMISSION FIXING RATES. Pennsylvania Public Service Company Law, § 31, relative to injunctions modifying, suspending, or annulling orders of the Public Service Commission, does not provide an opportunity to test the order so clear and definite that a public utility was obliged to proceed thereunder or lose its rights under the federal Constitution to a judicial determination of the reasonableness of the rate prescribed by the commission, by appealing from the order under sections 17 and 22. 5. PUBLIC SERVICE COMMISSIONS ~27—DU TIES OF COURTS ON APPEAL ARE JUDICIAL IN The duties of the courts on appeals from orders of the Public Service Commission under Pa. Public Service Company Law are judicial in character, and not legislative. Mr. Justice Brandeis, Mr. Justice Holmes, and Mr. Justice Clarke, dissenting. In Error to the Supreme Court of the State of Pennsylvania. Proceeding instituted before the Public Service Commission of Pennsylvania by Ben Avon Borough and others against the Ohio Valley Water Company. A decree of the Superior Court, reversing an order of the Commission, was reversed, and the order reinstated, by the Supreme Court of Pennsylvania (260 Pa. 289, 103 Atl. 744), and the Water Company brings error. Reversed and remanded. See, also, 251 U. S. 542, 40 S. Ct. 583, 64 L. Ed. Messrs. William Watson Smith, John G. Bu Due process of law, under the Fourteenth chanan, and George B. Gordon, all of PittsAmendment, requires that when a state confers burgh, Pa., for plaintiff in error. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Messrs. Berne H. Evans, of Harrisburg, Pa., [Co. v. State Public Utility Commission, 249 and Leonard K. Guiler, David L. Starr, and U. S. 422, 424, 39 Sup. Ct. 345, 63 L. Ed. 684. Albert G. Liddell, all of Pittsburgh, Pa., for defendants in error. *288 *Mr. Justice MCREYNOLDS delivered the opinion of the court. Acting upon a complaint charging plaintiff in error, a water company, with demanding unreasonable rates, the Public Service Commission of Pennsylvania instituted an investigation and took evidence. It found the fair value of the company's property to be $924,744 and ordered establishment of a new and lower schedule which would yield 7 per centum thereon over and above operating expenses and depreciation. Claiming the commission's valuation was much too low and that the order would deprive it of a reasonable return and thereby confiscate its property, the company appealed to the Superior Court. The latter reviewed the certified record, appraised the property at $1,324,621.80, reversed the order, and remanded the proceeding, with directions to authorize rates sufficient to yield 7 per centum of such sum. The Supreme Court of the state reversed the decree and reinstated the order, saying: "The appeal [to the Superior Court] presented for determination the question whether the order appealed from was reasonable and in conformity with law, and in this inquiry was involved the question of the fair value, for ratemaking purposes, of the property of appellant, and the amount of revenue which appellant was entitled to collect. In its decision upon the appeal, the Superior Court differed from the commission as to the proper valuation to be placed upon several items going to make up the fair value of the property of the water company for rate-making purposes." It considered those items and held that as there was competent evidence tending to sustain the commission's conclusion and no abuse of discretion appeared, the Superior Court should not have interfered therewith. "A careful examination of the voluminous *289 record in this case has led us to the conclusion that in the items wherein the Superior Court differed from the commission upon the question of values there was merely the substitution of its judgment for that of the commission in determining that the order of the latter was unreasonable." Looking at the entire opinion we are compelled to conclude that the Supreme Court interpreted the statute as withholding from the courts power to determine the question of confiscation according to their own independent judgment when the action of the commission comes to be considered on appeal. In all such cases, if the owner claims confiscation of his property will result, the state must provide a fair opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both law and facts; otherwise the order is void because in conflict with the due process clause, Fourteenth Amendment. Missouri Pac. R. R. v. Tucker, 230 U. S. 340, 347, 33 Sup. Ct. 961, 57 L. Ed. 1507; Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651, 660, 661, 35 Sup. Ct. 214, 59 L. Ed. 405; Missouri v. Chicago, Burlington & Quincy R. R., 241 U. S. 533, 538, 36 Sup. Ct. 715, 60 L. Ed. 1148; Oklahoma Operating Co. v. Love (March 22, 1920), 252 U. S. 331, 40 Sup. Ct. 338, 64 L. Ed. 596. [3] Here the insistence is that the Public Service Company Law as construed and applied by the Supreme Court has deprived plaintiff in error of the right to be so heard; and this is true if the appeal therein specifically provided is the only clearly authorized proceeding where the commission's order may be challenged because confiscatory. Thus far plaintiff in error has not succeeded in obtaining the review for which the Fourteenth Amendment requires the state to provide. *290 *Article 6, Public Service Company Law of Pennsylvania (P. L. 1913, p. 1429): "Sec. 31. No injunction shall issue modifying, suspending, staying, or annulling any order of the commission, or of a commissioner, except upon notice to the commission and after cause shown upon a hearing. The court of common pleas of Dauphin county is hereby clothed with exclusive jurisdiction throughout the commonwealth of all proceedings for such injunctions, subject to an appeal to the Supreme Court as aforesaid. Whenever the commission shall make any rule, regulation, finding, determination, or order under the provisions of this act the same shall be and remain conclusive upon all parties affected thereby, unless set aside, annulled, or modified in an appeal or proceeding taken as provided in this act." It is argued that this section makes adequate provision for testing judicially any order by the commission when alleged to be confiscatory, and that plaintiff in error has failed to take advantage of the opportunity so provided. The Supreme Court of Pennsylvania has not ruled upon effect or meaning of section 31, or expressed any view concerning it. So far as counsel have been able to discover, no relief against an order alleged to be confiscatory has been sought under this section, although much litigation has arisen under the act. It is part of the article entitled "Practice and [1, 2] The order here involved prescribed a Procedure Before the Commission and upon complete schedule of maximum future rates Appeal." Certain opinions by the Supreme and was legislative in character. Prentis v. Court seem to indicate that all objections to Atlantic Coast Line, 211 U. S. 210, 29 Sup. Ct. the commission's orders must be determined 67, 53 L. Ed. 150; Lake Erie & Western R. R. 'upon appeal-St. Clair Borough v. Tamaqua (40 Sup.Ct.) & Pottsville Electric Ry. Co., 259 Pa. 462, that the rates were, therefore, confiscatory in 103 Atl. 287; Pittsburgh Railways Co. v. violation of the Fourteenth Amendment. Pittsburgh, 260 Pa. 424, 103 Atl. 959-but they | That court, passing upon the weight of the do not definitely decide the point. *291 [4] Taking into consideration the whole act, statements by *the state Supreme Court concerning the general plan of regulation, and admitted local practice, we are unable to say that section 31 offered an opportunity to test the order so clear and definite that plaintiff in error was obliged to proceed thereunder or suffer loss of rights guaranteed by the federal Constitution. On the contrary, after specifying that within 30 days an appeal may be taken to the Superior Court (section 17), the act provides (section 22): "At the hearing of the appeal the said court shall, upon the record certified to it by the commission, determine whether or not the order appealed from is reasonable and in conformity with law." But for the opinion of the Supreme Court in the present cause, this would seem to empower the Superior Court judicially to hear and determine all objections to an order on appeal and to make its jurisdiction in respect thereto exclusive. Of this the latter court apparently entertained no doubt; and certainly counsel did not fatally err by adopting that view, whatever meaning finally may be attributed to section 31. [5] Without doubt the duties of the courts upon appeals under the act are judicial in character-not legislative, as in Prentis v. Atlantic Coast Line, supra. This is not disputed; but their jurisdiction, as ruled by the Supreme Court, stopped short of what must be plainly intrusted to some court in order that there may be due process of law. Plaintiff in error has not had proper opportunity for an adequate judicial hearing as to confiscation; and unless such an opportunity is now available, and can be definitely indicated by the court below in the exercisè of its power finally to construe laws of the state (including of course section 31), the challenged order is invalid. The judgment of the Supreme Court of Pennsylvania must be reversed, and the cause remanded there, with instructions to take further action not inconsistent with this opinion. evidence introduced before the commission, found that larger amounts should have been allowed for several items which entered into the valuation, reversed the order on that ground, and directed the commission to reform its valuation accordingly and upon such revised valuation to fix a schedule of rates which would yield the net return which it had found to be fair. From the decision of the Superior Court the commission appealed to the Supreme Court of the state, contending that the Superior Court had in passing upon the weight of the evidence exceeded its jurisdiction. The Supreme Court sustained this contention, and, holding, upon a careful review of the evidence and of the opinions below, that the commission had been justified in its findings by "ample testimony" or "competent evidence," and that they were not unreasonable, reversed the decree of the Superior Court and reinstated the order of the commission. Borough of Ben Avon v. Ohio Valley Water Co., 260 Pa. 289, 103 Atl. 744. The case comes here on writ of error under section 237 of the Judicial Code, as amended (Comp. St. § 1214), the company claiming that its rights guaranteed by the Fourteenth Amendment have been violated: (1) because the Public Service Company Law, as construed by the Supreme Court of the State, denies the opportunity of a judicial review of the commission's *order; and (2) that the order, which was reinstated by the Supreme Court, confiscates its property. *293 First. The commission's order, although entered in a proceeding commenced upon due notice, conducted according to judicial practice and participated in throughout by the company, was a legislative order; and, being such, the company was entitled to a judicial review. Prentis v. Atlantic Coast Line, 211 U. S. 210, 228, 29 Sup. Ct. 67, 53 L. Ed. 150. The method of review invoked by the company under specific provisions of the statute was this: A stenographic report is made of all the evidence introduced before the commission. On a record consisting of such evidence, the opinion and the orders, the case is appealed to the Superior Court, which is given power, if it finds that the order appealed from "is unreasonable or based upon incompetent evidence materially affecting the determination *Mr. Justice BRANDEIS, dissenting. of the commission or is otherwise not in The Public Service Commission of Pennsyl-conformity with law" either to reverse the orvania, acting upon complaint of Ben Avon der or to remand the record to the commission borough and others, found, after due notice with direction to reconsider the matter and and hearing, that increased rates adopted by make such order as shall be reasonable and in the Ohio Valley Water Company were un-conformity with law. No additional evidence reasonable, and it prescribed a schedule of may be introduced in the Superior Court; but lower rates which it estimated would yield 7 it may remand the case to the commission with per cent. net upon the value of the property directions to hear newly discovered evidence used and useful in the service. The company and upon the record thus supplemented to appealed to the Superior Court, contending enter such order as may be reasonable and in that the property had been undervalued and conformity with law. From such new order 40 SUP.CT.-34 Reversed. *292 |