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(251 U. S. 366)

NAPA VALLEY ELECTRIC CO. v. BOARD
OF RAILROAD COM'RS OF CALI-

FORNIA et al.

and the Calistoga Electric Company, also a California corporation, has been for 7 years a distributing agency of the Electric Company and the latter is not as to the Calistoga Com

(Argued Dec. 12, 1919. Decided Jan. 19, 1920.) pany a public utility. By virtue of certain

No. 401.

1. APPEAL AND ERROR 927(2)—THAT PETITION TO STATE SUPREME COURT AUTHORIZED TAIN DISMISSAL IN FEDERAL COURT BECAUSE

DECISION ON THE MERITS PRESUMED TO SUS

DENIAL OF PETITION WAS RES JUDICATA.

On appeal from decree of federal District Court dismissing bill on the ground that the controversy was res judicata by reason of denial of petition to state Supreme Court under Public Utilities Act Cal. § 67, for writ of review to the commission, it may be presumed that the petition, not in the record, circumstantially exhibited and submitted to the court the questions it was authorized to entertain, including a determination whether the commission's order

violated any right under the federal Constitu

tion.

circumstances the Electric Company entered into a contract with one E. L. Armstrong by which it agreed not to extend its lines into Calistoga territory, and Armstrong agreed to buy from it all of the electricity to be sold by him for 18 years. At that time the Electric

*368

Company under the laws of California had a right to extend its lines and become a competitor of other companies or individuals.

September 14, 1911, the Calistoga Company became the successor in interest of Armstrong and to his rights and obligations under the contract with the Electric Company, and the Calistoga Company acknowledged the fact of such succession and continued to buy its electricity from the Electric Company at the rates set forth in the contract, until November 18, 1913, when it petitioned the

2. JUDGMENT 560-DENIAL OF PETITION Commission to set aside the contract and

FOR WRIT OF REVIEW WITHOUT OPINION IS
ADJUDICATION OF MERITS.

As the state Supreme Court, on petition under Public Utilities Act Cal. § 67, for writ of review to the commission, can, without having the record certified, decide the questions involved, they being shown on the face of the petition, its mere denial in such a case of the petition, without opinion, is an adjudication of such questions, thereafter assignable as res judicata.

Appeal from the District Court of the United States for the Northern District of

California.

Suit by the Napa Valley Electric Company against the Board of Railroad Commissioners of California and others. Bill dismissed (257 Fed. 197), and plaintiff appeals. Affirmed.

+367

*Messrs. Milton T. U'Ren, of San Francisco, Cal., and D. L. Beard, of Napa, Cal., for appellant.

compel the Electric Company to accept other rates than those mentioned in the contract.

The Electric Company answered the petition, set up the contract and alleged that any change in its rates would be a violation of section 10, article 1, of the Constitution of the United States and the Fourteenth Amendment thereto.

January 24, 1914, the Commission instituted an investigation on its own motion which with the petition of the Calistoga Company was consolidated. The petitions were heard together upon evidence and submitted.

The Commission subsequently made an order fixing rates much less than those of the contract.

June 20, 1914, the Electric Company filed a petition for rehearing, setting up its rights under the Constitution of the United States. A rehearing was denied.

May 1, 1914, the Electric Company and the

Mr. Douglas Brookman, of San Francisco, Calistoga Company entered into an agreement Cal., for appellees.

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fixing rates subject to the approval of the Commission which the Calistoga Company agreed to secure. It did secure an informal approval of them and paid them until June

27, 1916.

The rates fixed by the Commission never became effective and therefore the Electric Company did not petition for a review of them by the Supreme Court of the state nor commence proceedings in any court of the United States to enjoin the order establishing them or to have it set aside as null and void.

369

The ground of the motion and the decree sustaining it was that it appeared from the averments of the bill that the controversy it stated was res judicata. The bill is long, but the grounds of it can be stated with fair *June 27, 1916, the Calistoga Company brevity. The Electric Company is a Califor- again petitioned the Commission to establish nia corporation and has been engaged for other rates than those fixed in the agreement more than 10 years in supplying electricity of that company with the Electric Company. (called in the bill electric energy) for domes- The latter company filed a counter petition tic use in the town of St. Helena and vicinity, to have established the rates fixed in the con

For other case see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

tract of May 1, 1914 (reduced to writing nor set aside the orders of the Commission September 15, 1914), and the petition and until the record was certified to it and the that of the Calistoga Company came on to parties were before it and after formal hearbe heard and after evidence adduced the ing in the matter. Commission, November 15, 1916, reduced the rates fixed in the written contract of September 15, 1914, and made the reduced rates effective December 20, 1916.

A rehearing was denied May 24, 1917, and on June 20, 1917, the Electric Company duly filed a petition in the Supreme Court of the state of California praying that a writ of review issue commanding the Commission on a day named to certify to the court a full and complete record of the proceedings before it, the Commission, and that upon a return of the writ the orders and decisions of the Commission be reversed, vacated and annulled upon the ground that they violated the company's rights under the Constitution of the United States, particularly under section 10, article 1, and under section 1 of article 14 of the Amendments thereto. The Supreme Court of California denied the "petition for writ of review and refused to issue a writ of review, as prayed for in said petition."

On or about January 27, 1918, the California Light & Telephone Company became a party to the contracts between the Electric Company and the Calistoga Company by reason of conveyances from the latter company. In the present bill it is alleged that the orders and decisions of the Commission were

illegal, were in excess of its jurisdiction and that the Electric Company has no adequate remedy at law and prays a decree declaring the orders and decisions null and void, that they be enjoined of enforcement or made the basis of suits against the company to enforce

them.

*370

*The Commission and other defendants moved to dismiss on the ground that it appeared from the allegations of the bill that "the subject-matter thereof was res judicata" and that there was no ground stated entitling the company to the relief prayed. The motion was granted and to the decree adjudging a dismissal of the bill this writ of error is directed.

The District Court (Judge Van Fleet) based its ruling upon the allegations of the bill that the Electric Company filed in the Supreme Court a petition for a review of the decision and order of the Commission and for their annulment, and that the Supreme Court denied the petition.

The Electric Company to the ruling of the court opposes the contention that the Supreme Court denied the company's "petition for a preliminary writ and refused to even cause the record in the case, certified by the Commission to be brought up," and therefore "simply refused to entertain jurisdiction of the controversy." And it is the further contention that the court could neither affirm

The contention is based on section 67 of the Public Utilities Act of the state. St. 1911 (Ex. Sess.) p. 18. The section is too long to quote. It is part of the procedure provided by the state for the execution of its policy in regard to the public utilities of the state, and affords a review of the action of the Commission regulating them. It is quite circumstantial and explicit. It provides for a review of the action of the Commission by writ of certiorari or review from the Supreme Court of the state which "shall direct the commission to certify its record in the case to the court," the cause to "be heard on the record of the commission as certified by it." No other evidence is to be received and the review is confined to an inquiry "whether the commission has regularly pursued its author

*371

ity" or whether its order or decision "violates any right of the petitioner under the Constitution of the United States or of the state

of California." The findings and conclusions of the Commission on questions of fact are to be final. The Commission and the parties have the right of appearance and upon the ther affirming or setting aside the order or dehearing the court "shall enter judgment ei

cision of the commission." The Civil Code of

the state is made applicable so far as it is not inconsistent with the prescribed proceedings and no court of the state except the Supreme Court to the extent specified shall have jurisdiction over any order or decision of the Commission except "that the writ of mandamus shall lie from the Supreme Court to the Commission in all proper cases."

These provisions counsel insist were not observed and that therefore there was not and could not have been "an adjudication of the controversy" by the Supreme Court. There was nothing, it is insisted, but the Electric Company's petition before the court, and that none of the essential requirements of section 67 were observed. No writ of review was issued-none certified by the Commission or returned, no return day fixed or hearing had on a certified record, no appearance of the parties, no order of the court affirming or setting aside of the Commission's order. In other words the substance of the contention is that the court instead of hearing refused to hear, instead of adjudicating refused to adjudicate, and that from this negation of action or decision there cannot be an assertion of action or decision with the estopping force of res judicata assigned to it by the District Court.

[1] Counsel to sustain the position that he has assumed and contends for insists upon a literal reading of the statute and a discussion of the elements of res judicata. We need not

follow counsel into the latter. They are

*372

the questions presented, and its subsequent conclusive effect upon the rights of the Electric Company. Therefore the decree of the District Court is affirmed.

*familiar and necessarily cannot be put out of mind, and the insistence upon the literalism of the statute meets in resistance the common and, at times, necessary practice, of courts to determine upon the face of a pleading what action should be taken upon it. The petition is not in the record. We may presume it was circumstantial in its exposition of the proceedings before the Commission and of the (Petition for Rehearing Received Jan. 5, 1920.

latter's decisions and orders, and exhibited and submitted to the court the questions it was authorized to entertain-whether the

(251 U. S. 380)

STROUD v. UNITED STATES.

Decided Jan. 19, 1920.)
No. 276.

Commission "pursued its authority, including 1. CRIMINAL LAW 11662 (8)-DENIAL OF

a determination of whether the order or decision" violated "any right" of the company "under the Constitution of the United States or of the state of California."

[2] Whether upon such an exhibition of the proceedings and questions the court was required to pursue the details of the section or decide upon the petition was a matter of the construction of the section and the proce dure under it. And the Supreme Court has so decided. L. Ghriest, Petitioner, v. R. R. Com'n, 170 Cal. 63, 148 Pac. 195; Mt. Konocti Light & Power Co. v. Max Thelen et al., 170 Cal. 468, 150 Pac. 359; E. Clemens Horst Co. v. R. R. Commission, 175 Cal. 660, 166 Pac. 804; Hooper & Co. v. R. R. Comm., 175 Cal. 811, 165 Pac. 689. In those cases the applications for writs of certiorari were denied, which was tantamount to a decision of the court that the orders and decisions of the Commission did not exceed its authority or violate any right of the several petitioners under the Constitution of the United States or of the state of California. And so with the denial of the petition of the Electric Company-it had like effect and was the exercise of the judicial powers of the court. And we repeat, to enable the invocation of such powers was the purpose of section 67, and they could be exercised upon

the display in the petition of the proceedings before the Commission and of the grounds

*

+373

upon which they were assailed. And we
agree with the District Court that "the denial
of the petition was necessarily a final judicial
determination,
based on the identi-
cal rights" asserted in that court and repeat-
ed here. Williams v. Bruffy, 102 U. S. 248,
255, 26 L. Ed. 135. And further, to quote the

District Court:

"Such a determination is as effectual as an estoppel as would have been a formal judgment upon issues of fact. Calaf v. Calaf, 232 U. S. 371, 34 Sup. Ct. 411, 58 L. Ed. 642; Hart Steel Co. et al. v. Railroad Supply Co., 244 U. S. 294, 299, 37 Sup. Ct. 506, 61 L. Ed. 1148."

The court held, and we concur, that absence of an opinion by the Supreme Court did not affect the quality of its decision or detract from its efficacy as a judgment upon

CHALLENGE FOR CAUSE HARMLESS ERROR.

Where defendant, by the statute allowed 20 peremptory challenges, was in fact allowed 21, and it does not appear that any objectionable juror sat on the trial, his right to peremptory challenge was not abridged to his prejudice by an erroneous denial of a challenge for cause.. UNALTERABLY FOR 2. JURY 108-JUROR

CAPITAL PUNISHMENT SUBJECT ΤΟ CHAL-
LENGE FOR CAUSE.

In a homicide case, where testimony of a juror made it reasonably certain that in the event of conviction for murder in the first degree he would render no other verdict than one which would require capital punishment, court should have granted a challenge for cause.

In Error to the District Court of the United States for the District of Kansas. Upon Petition for Rehearing.

Former opinion adhered to.

For former opinion, see 251 U. S. 15, 40 Sup. Ct. 50, 64 L. Ed.

Messrs. Isaac B. Kimbrell and Martin J. O'Donnell, both of Kansas City, Mo., for plaintiff in error on petition for rehearing.

Memorandum opinion by direction of the Court, by Mr. Justice DAY.

In this proceeding on November 24, 1919,

this court affirmed the judgment of the United States District Court for the District of Kansas rendered upon a verdict convicting the plaintiff in error of murder in the first degree.

A petition for rehearing has been presented. It has been considered, and we find *381

occasion to notice only so much thereof as refers to the refusal of the court below to sustain the plaintiff in error's challenge for cause as to the juror Williamson. The other grounds urged have been examined and found to be without merit.

Williamson was called as a juror, and, as we said in our former opinion, was challenged for cause by the plaintiff in error. This challenge was overruled, and the juror was then challenged peremptorily by the accused. The testimony of Williamson made it reasonably certain that in the event of conviction for murder in the first degree he

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

would render no other verdict than one and later was peremptorily challenged by the which required capital punishment. Granting that this challenge for cause should have been sustained, and that this ruling required the plaintiff in error to use one of his peremptory challenges to remove the juror from the panel, we held that the refusal to sustain the challenge was not prejudicial error, as the record disclosed that the defendant was allowed 22 peremptory challenges, when

the law allowed but 20.

[1, 2] In the petition for rehearing it is alleged that the record discloses that in fact the accused was allowed 20 peremptory challenges and no more, and this allegation is accompanied by an affidavit of counsel giving the names of 20 persons challenged peremptorily by the plaintiff in error, and stating that no other peremptory challenges were allowed to him at the trial. In this statement the counsel is mistaken. An examination of the original transcript, as also the printed transcript, shows that a juror, H. A. Shearer, was called and examined upon his voir dire (printed transcript, page 79),

plaintiff in error (printed transcript, page 143) and excused from the panel. H. A. Shearer's name does not appear upon the list of those as to whom peremptory challenges were made and sustained in plaintiff in error's behalf as given in the petition and affi- ' davit for *a rehearing. It does appear in the transcript that plaintiff in error was allowed 21 peremptory challenges, and it follows that

*382

his right to exercise such challenges was not
abridged to his prejudice by the failure to
allow the single challenge for cause which in
our opinion should have been sustained by
the trial judge. Furthermore, the record
shows that after the ruling and challenge as
to Williamson the plaintiff in error had other
used; and the record does not disclose that
peremptory challenges which he might have
other than an impartial jury sat on the trial.
See Spies v. Illinois, 123 U. S. 131, 168, 8
Sup. Ct. 22, 31 L. Ed. 80, and cases cited.
It follows that the petition for rehearing
must be denied.
So ordered.

MEMORANDUM DECISIONS

DISPOSED OF AT OCTOBER TERM, 1919

(251 U. S. 565)

No. 64. GREAT NORTHERN RAILWAY COMPANY, plaintiff in error, v. The STATE OF WASHINGTON. Jan. 5, 1920. In error to the Supreme Court of the State of Washington. For opinions below, see 97 Wash. 137, 165 Pac. 1073, 167 Pac. 1117. Messrs. E. C. Lindley, of St. Paul, Minn., F. V. Brown, of Seattle, Wash., and F. G. Dorety, of St. Paul, Minn., for plaintiff in error. Mr. W. V. Tanner, of Seattle, Wash., for State of Washington. Dismissed with costs, on motion of counsel for the plaintiff in error.

No. 80. H. TURNER et al., executors, etc., plaintiffs in error, v. J. P. WADE, sheriff of Brooks County, Georgia. Jan. 5, 1920. See, also, 147 Ga. 666, 95 S. E. 220. Messrs. John D. Little, Arthur G. Powell, Marion Smith, and Max F. Goldstein, all of Atlanta, Ga., for plaintiffs in error. Mr. Clifford Walker, of Monroe, Ga., for defendant in error. Ordered that this case be restored to the docket for reargument.

(251 U. S. 565)

No. 148. MAGMA COPPER COMPANY, plaintiff in error, v. Charles RISSALA. Jan. 5, 1920. In error to the District Court of the United States for the District of Arizona. Messrs. Alex Britton and Evans Browne, both 40 SUP.CT.-12

of Washington, D. C., for plaintiff in error. Dismissed with costs, on motion of counsel for the plaintiff in error.

(251 U. S. 541)

No. 251. George J. TWOHY, Executor, etc., plaintiff in error, v. E. J. DORAN, Commissioner of the Revenue, et al. Jan. 5, 1920. In error to the Supreme Court of Appeals of the State of Virginia. Mr. George Mason Dillard, of Norfolk, Va., for plaintiff in error. Mr. J. D. Hank, Jr., of Richmond, Va., for defendant in error.

PER CURIAM. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156), as amended by the act of September 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. § 1214).

(251 U. S. 556)

No. 604. Carlos L. BYRON, petitioner, v. The UNITED STATES of America. Jan. 5, 1920. For opinion below, see 259 Fed. 371. Messrs. P. V. Davis and Edward M. Comyns, both of Seattle, Wash., for petitioner. Mr. Frank K. Nebeker, Assist. Atty. Gen., and Mr. H. L. Underwood, Sp. Assist. Atty. Gen., for the United States. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied.

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(251 U. S. 556)

Kansas. For opinion below, see 103 Kan. 347, 175 Pac. 153. Mr. Joseph G. Waters, of Topeka, Kan., for plaintiff in error.

PER CURIAM. Dismissed for want of jurisdiction upon the authority of Consolidated Turnpike Co. v. Norfolk, etc., Ry. Co., 228 U. S. 326, 334, 33 Sup. Ct. 510, 57 L. Ed. 857; St. Louis & San Francisco R. R. Co. v. Shepherd, 240 U. S. 240, 241, 36 Sup. Ct. 274, 60 L. Ed. 622; Bilby v. Stewart, 246 U. S. 255, 257, 38 Sup. Ct. 264, 62 L. Ed. 701.

(251 U. S. 541)

No. 626. The BALTIMORE DRY DOCK & SHIP BUILDING COMPANY, petitioner, v. NEW YORK & PORTO RICO STEAMSHIP COMPANY, owner and claimant of THE No. 591. Matty McLAUGHLIN, plaintiff in ISABELLA, et al. Jan. 5, 1920. For opinion below, see 262 Fed. 485. Mr. George Weems error, v. The UNITED STATES of America. Williams, of Baltimore, Md., for petitioner. Jan. 12, 1920. In error to the District Court Messrs. George Forbes, of Baltimore, Md., and of the United States for the Northern District Ray Rood Allen, of New York City, for respond-of Ohio. Messrs. Daniel L. Cruice, of Chicago, ents. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the

Fourth Circuit denied.

(251 U. S. 565)

No. 130. William H. GARANFLO, petitioner, v. The UNITED STATES of America; and No. 131. Robert D. DUNCAN, petitioner, v. The UNITED STATES of America. Jan. 9, 1920. On petitions for writs of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit. For opinion below, see 246 Fed. 910, 159 C. C. A. 182. Mr. Chester H. Krum, of St. Louis, Mo., for petitioner. Mr. Assistant Attorney General Frierson, for the United States. Dismissed for want of prosecution on motion of Mr. Assistant Attorney General Frierson for the respondent.

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Ill., and Rob. V. Phillips, of Toledo, Ohio, for General, of Atlanta, Ga., and A. F. Myers, of plaintiff in error. Mr. Alex. C. King, Solicitor Washington, D. C., for the United States. Messrs. Thos. H. Tracy and George D. Welles, both of Toledo, Ohio, for Dail Overland Co. Amici Curiæ.

PER CURIAM. Dismissed for want of juNewspaper Co. v. United States, 247 U. S. risdiction upon the authority of (1) Toledo 402, 410-411, 38 Sup. Ct. 560, 62 L. Ed. 1186; Bessette v. W. B. Conkey Co., 194 U. S. 324, 328-337, 24 Sup. Ct. 665, 48 L. Ed. 997; O'Neal v. United States, 190 U. S. 36, 37-38, Houston & Texas Central Ry. Co., 150 U. S. 23 Sup. Ct. 776, 47 L. Ed. 945; (2) Carey v. 171, 14 Sup. Ct. 63, 37 L. Ed. 1041; Maynard v. Hecht, 151 U. S. 324, 14 Sup. Ct. 353, 38 L. Ed. 179; Courtney v. Pradt, 196 U. S. 89, 25 Sup. Ct. 208, 49 L. Ed. 398; (3) In re Lennon, 150 U. S. 393, 399-401, 14 Sup. Ct. 123, 37 L. Ed. 1120; (4) Itow et al. v. United States, 233 U. S. 581, 34 Sup. Ct. 699, 58 L. Ed. 1102; Sugarman v. United States, 249 U. S. 182, 184, 39 Sup. Ct. 191, 63 L. Ed. 550.

(251 U. S. 556)

No. 608. HURNI PACKING COMPANY, petitioner, v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK. Jan. 12, 1920. For opinion below, see 260 Fed. 641. Mr. Deloss C. Shull, of Sioux City, Iowa (Messrs. Charles M. Stilwill and Edwin J. Stason, both of Sioux City, Iowa, of counsel), for petitioner. Messrs. Frederick L. Allen, of New York City, and Frederic D. McKenney, of Washington, D. C. (Messrs. Ralph L. Read, of Des Moines, Iowa, and Guy T. Struble, of Sioux City, Iowa, of counsel), for respondent. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied.

(251 U. S. 556)

No. 619. The NORMA MINING COMPA

NY, petitioner, v. Hugh MACKAY. Jan. 12, 1920. For opinion below, see 258 Fed. 914, 991. Messrs. George Lull and Maurice T. Dooling, Jr., both of San Francisco, Cal., for petitioner. Messrs. Frederick A. Williams, of Boston, Mass., and Robinson & Robinson, of Denver, Colo., for respondent. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied.

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