(40 Sup.Ct.) trict of Oklahoma by the Oklahoma Operat- | of performing laundry service in Oklahoma ing Company against the Corporation Com-City and information in general to determine mission of that state to enjoin it from en- what may be reasonable rates for laundry tertaining complaints against the company service in that city. Upon these allegations for the violation of orders limiting the rates a preliminary injunction was sought below to restrain the Commission from entertaining complaints for violation of its order fixing the investigation regarding the cost of the rates and to enjoin it from proceeding with #333 for laundry work in Oklahoma City *theretofore entered by the Commission, under section 8235 of the Revised Laws of Oklahoma (1910); and from doing any other acts or things to enforce said orders. The case comes here under section 266 of the Judicial Code (Comp. St. § 1243) by direct appeal from an order denying a motion for a preliminary injunction heard before three judges. The appellant presents to this court the question whether section 8235 is void under the Fourteenth Amendment, contending that under the laws of the state there was no opportunity of reviewing judicially a legislative rate fixed pursuant to that section, except by way of defense to proceedings for contempt which might be instituted for violating the order, and that the possible penalties for such violation were so heavy as to prohibit resort to that remedy. The bill as amended makes the following allegations: In 1913 the Commission entered an order declaring the Oklahoma Operating Company a monopoly and its business a public one, and directed it not to increase the rates then being charged except upon application to and permission of the Commission. Since that time operating costs have risen *334 greatly and rates for laundry work pre*vailing in 1913 have become noncompensatory. Accordingly in January, 1918, the company moved the Commission to set aside its order of 1913 on the ground that the laundry business was not within the purview of section 8235, that the company was not a monopoly within the meaning of that section, and that the section was void. The Commission denied this motion, and thereafter the company established rates higher than those prevailing in 1913. On account of this it is now threatened with proceedings for contempt. Since the establishment of these higher rates the company has been summoned before the Commission to give information as to the cost 18235. Public Business Defined. Whenever any business by reason of its nature, extent, or the existence of a virtual monopoly therein, is such that the public must use the same, or its services, or the consideration by it given or taken or offered, or the commodities bought or sold therein are offer ed or taken by purchase or sale in such a manner as to make it of public consequence or to affect the community at large as to supply, demand or rate thereof, or said business is conducted in violation of the first section of this article, said business is a public business, and subject to be controlled by the state, by the corporation commission or by an action in any district court of the state, as to all of its practices, prices, rates and charges. And it is hereby declared to be the duty of any person, firm or corporation engaged in any public business to render its services and offer its commodities, or either, upon reasonable terms without discrimination and adequately to the needs of the public, considering the facilities of said business. service. The scope of section 8235 and the prescribed course of proceedings thereunder, as construed by the Supreme Court of the state (Harriss-Irby Cotton Co. v. State, 31 Okl. 603, 122 Pac. 163; Shawnee Gas & Electric Co. v. State, 31 Okl. 505, 122 Pac. 222; Oklahoma Gin Co. v. State [Okl.] 158 Pac. 629), in connection with other legislation (sections 1192 to 1207 of the Revised Code of 1910) and provisions of the state Constitution (article 9, sections 18 to 23), are, so far as here material, these: Whenever any business, by reason of its nature, extent, or the exercise of a virtual monopoly therein, is such that the public must use the same or its services, it is deemed a public business, and as such is subject to the duty to render its services upon reasonable terms without discrimination. If any public business violates such duty the Corporation Commission has power to regulate its rates and practices. Disobedience to an order establishing rates may be punished as a contempt and the Commission *335 has power, *sitting as a court, to impose a penalty therefor not exceeding $500 a day. Each day's continuance of failure or refusal to obey the order constitutes a separate offense. The original order may not be made nor any penalty imposed except upon due notice and hearing. No court of the state, except the Supreme Court by way of appeal, may review, correct or annul any action of the Commission within the scope of its authority or suspend the execution thereof; and the Supreme Court may not review an order fixing rates by direct appeal from such order. But in the proceedings for contempt the validity of the original order may be assailed; and for that purpose, among others, new evidence may be introduced. When a penalty for failure to obey an order has been imposed an appeal ties to the Supreme Court. On this appeal the validity of the original order may be reviewed; the appeal is allowed as of right upon filing a bond with sureties in double the amount of the fine imposed; the filing of the bond suspends the fine; and the period of suspension may not be computed against a concern in fixing the amount of liability for fines. [1, 2] The order of the Commission prohibiting the company from charging, without its permission, rates higher than those prevailing in 1913, in effect prescribed maximum rates for the service. It was, therefore, a legislative order; and under the Fourteenth *336 this day, it appears that the full penalty of $500, with the provision for the like penalty for each subsequent day's violation of the order, was imposed in each of three complaints there involved, although they were merely different instances of charges in excess of a single prescribed rate. Obviously a judicial review beset by such deterrents does not satisfy the constitutional requirements, even if otherwise adequate, and therefore the provisions of the acts relating to the enforcement of the rates by penalties are unconstitutional without regard to the question of the insufficiency of those rates. Ex parte Young, 209 U. S. 123, 147, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764; Missouri Pacific Railway Co. v. Tucker, 230 U. S. 340, 349, 33 Sup. Ct. 961, 57 L. Ed. 1507; Wadley Southern Railway v. Georgia, 235 U. S. 651, 662, 35 Sup. Ct. 214, 59 L. Ed. 405. Amendment plaintiff was entitled to an op- | der. In Oklahoma Gin Co. v. State, 252 U. portunity for a review in the courts of its S. 339, 40 Sup. Ct. 341, 64 L. Ed. - decided contention that the rates were not compensatory. Chicago, etc., Railway Co. v. Minnesota, 134 U. S. 418, 456-458, 10 Sup. Ct. 462, 33 L. Ed. 970; Ex parte Young, 209 U. S. 123, 165, 166, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764. The Constitution of the state prohibited any of its courts from reviewing any action of the Commission within its authority except by way of appeal to the Supreme Court (article 9, section 20); and the Supreme Court had construed the Constitution and applicable provisions of the statutes as not permitting a direct appeal from *orders fixing rates. Harriss-Irby Cotton Co. v. State, supra. On be half of the Commission it was urged at the oral argument that a judicial review of the order fixing rates might have been had also by writ of mandamus or of prohibition issuing out of the Supreme Court of the state. But, in view of the provision of the state Constitution just referred to, it must be assumed, in the absence of a decision of a state court to the contrary, that neither remedy, even if otherwise available, could be used to review an order alleged to be void because confiscatory. The proviso "that the writs of mandamus and prohibition shall lie from the Supreme Court to the Commission in all cases where such writs, respectively, would lie to any inferior court or officer," appears to have no application here. The challenge of a prescribed rate as being confiscatory raises a question, not as to the scope of the Commission's authority, but of the correctness of the exercise of its judgment. Compare Hirsh v. Twyford, 40 Okl. 220, 230, 139 Pac. 313. [3] So it appears that the only judicial review of an order fixing rates possible under the laws of the state was that arising in pro [4] The plaintiff is entitled to a temporary mission from enforcing the penalties. Since injunction restraining the Corporation Comthis suit was commenced, the Legislature has provided by chapter 52, section 3, of the Laws of 1919 (Sess. Laws Oklahoma 1919, p. 87) that in actions arising before the Commission under section 8235 there shall be the Court of the state as had theretofore exsame right of direct appeal to the Supreme isted in the case of transportation and trans mission companies under article 9, section 20, of the Constitution. But as plaintiff was obliged to resort to a federal court of equity for relief it ought to retain jurisdiction of the cause in order to make that relief as full and complete as the circumstances of *338 the case and the nature of the proofs may refor the purpose of determining whether the quire. The suit should, therefore, proceed ceedings to punish for contempt. The Constitution endows the Commission with the maximum rates fixed by the Commission are, powers of a court to enforce its orders by under present conditions, confiscatory. If such proceedings. Article 9, sections 18, 19. they are found to be so, a permanent injuncBy boldly violating an order a party against tion should issue to restrain their *enforcewhom it was directed may provoke a complaint; and if the complaint results in a cita-wise, as through an assertion by customers ment either by means of penalties or othertion to show cause why he should not be of alleged rights arising out of the Commispunished for contempt, he may justify before sion's orders. Missouri v. Chicago, Burlingthe Commission by showing that the order ton & Quincy R. R., 241 U. S. 533, 538, 36 Sup. Ct. 715, 60 L. Ed. 1148. If upon final hearing the maximum rates fixed should be found not to be confiscatory, a permanent injunction should, nevertheless, issue to restrain enforcement of penalties accrued pendente lite, provided that it also be found that the plaintiff had reasonable ground to contest them as being confiscatory. violated was invalid, unjust or unreasonable. If he fails to satisfy the Commission that it erred in this respect, a judicial review is opened to him by way of appeal on the whole record to the Supreme Court. But the penalties, which may possibly be imposed, if he pursues this course without success, are such as might well deter even the boldest and most confident. The penalty for refusal *337 to obey an order may be $500; and each day's continuance of the refusal after service of the order it is declared "shall be a separate offense." The penalty may apparently be imposed for each instance of violation of the or [5] It does not follow that the Commission need be restrained from proceeding with an investigation of plaintiff's rates and prac tices, so long as its findings and conclusions are subjected to the review of the District Court herein. Indeed, such investigation and (40 Sup.Ct.) the results of it might with appropriateness be made a part of the final proofs in the cause.2 These conclusions require that the decree of the District Court be reversed and that the case be remanded for further proceedings in conformity with this opinion. Reversed. (252 U. S. 339) Mr. C. B. Ames, of Oklahoma City, Okl. for plaintiff in error. Messrs. S. P. Freeling and Paul A. Wal ker, both of Oklahoma City, Okl., for the State of Oklahoma. Mr. Justice BRANDEIS delivered the opinion of the Court. The Corporation Commission of Oklahoma having found under section 8235 of the Revised Laws of 1910 that the Oklahoma Gin Company and four other concerns in the OKLAHOMA GIN CO. v. STATE OF OKLA- town of Chandler had combined and raised HOMA. (Submitted Oct. 9, 1919. 1920.) No. 32. the charges for ginning cotton, and on October 17, 1913, fixed a schedule of rates Decided March 22, lower than those then in force. The company thereafter charged rates in excess of those so fixed, and three separate complaints against it alleging violation of the order were filed with the Commission. Being summoned $340 *to show cause why it should not be punished for contempt the company admitted violation of the order, but alleged that it was void, among other reasons, because section 8235 was in conflict with the Fourteenth Amendment. After a full hearing, at which new evidence was introduced, the Commission affirmed, on October 10, 1914, the rates fixed, made a finding that the violation of the order was willful, imposed on the company a fine of $500 and costs under each of the CONSTITUTIONAL LAW 303-PUBLIC SERV- Rev. Laws Okl. 1910, § 8235, so far as it provides penalties for disobedience of orders of the Corporation Commission fixing rates, violates the Fourteenth Amendment, because of the lack of any opportunity for a judicial review of such orders. In Error to the Supreme Court of the State three separate complaints, directed refund of Oklahoma. of all amounts collected in excess of prescribed rates, and declared also: "A fine will be imposed for each day the order has been violated, and the matter as to the num Proceeding before the Corporation Commission of Oklahoma by the State of Oklahoma against the Oklahoma Gin Company. ber of days and the amounts of fines to be imThe order of the Commission imposing a posed upon defendant, other than those menfine, etc., was affirmed by the Oklahoma Su- tioned in the information, will be left open for preme Court (158 Pac. 629), and the Gin Com-adjustment upon taking of evidence as to the pany brings error. Reversed. See, also, 39 Sup. Ct. 387, 40 Sup. Ct. 338. In Ex parte Young, 209 U. S. 123, 133, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764, the District Court appears to have considered whether the rates were reasonable although the penal features of the act were declared void. Missouri Pac. Ry. Co. v. Tucker, 230 U. S. 340, 33 Sup. Ct. 961, 57 L. Ed. 1507, was an action for the penalty; and the question here raised was not involved. That it is the penalty provision and not the rate provision which is void appears from the cases in which the validity of statutes was sustained because the objectionable penalty provisions were severable and there was no attempt to enforce the penalties. Willcox v. Consolidated Gas Co., 212 U. S. 19, 53, 29 Sup. Ct. 192, 53 L. Ed. 382, 15 Ann. Cas. 1034, 48 L. R. A. (N. S.) 1134; United States v. Delaware & Hudson Co., 213 U. S. 366, 417, 29 Sup. Ct. 527, 53 L. Ed. 836; Grenada Lumber Co. v. Mississippi, 217 U. S. 433, 443, 30 Sup. Ct. 535, 54 L. Ed. 826; Atchison, etc., Ry. Co. v. O'Connor, 223 U. S. 280, 286, 32 Sup. Ct. 216, 56 L. Ed. 436, Ann. Cas. 1913C, 1050; Wadley Southern Ry. v. Georgia, 235 U. S. 651, 662, 35 Sup. Ct. 214, 59 L. Ed. 405. number of days violated." An appeal was taken by the company to the Supreme Court of the state, which affirmed the order, and thereafter denied two petitions for rehearing. The case comes here on writ of error under section 237 of the Judicial Code as amended (Comp. St. § 1214). This case was argued and submitted with Oklahoma Operating Co. v. Love et al., 252 U. S. 331, 40 Sup. Ct. 338, 64 L. Ed. decided this day. For the reasons set forth in the opinion in that case, the provision concerning penalties for disobedience to an order of the Commission was void, because it deprived the company of the opportunity of a judicial review. The judg ment must therefore be reversed. It is unnecessary to consider other contentions of plaintiff in error. Reversed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes MEMORANDUM DECISIONS DISPOSED OF AT OCTOBER TERM, 1919 (251 U. S. 546) No. 163. The ATLANTIC COAST LINE RAILROAD COMPANY, appellant, v. The UNITED STATES. March 1, 1920. Appeal from the Court of Claims. For opinion below, see 53 Ct. Cl. 638. Mr. Ben Carter, of Washington, D. C., for appellant. The Attorney General for the United States. PER CURIAM. Affirmed upon the authority of Atchison, Topeka & Santa Fé Ry. Co. v. United States, 225 U. S. 640, 32 Sup. Ct. 702, 56 L. Ed. 1236. (251 U. S. 546) No. 218. CITY OF FULTON, plaintiff in error, v. PUBLIC SERVICE COMMISSION OF MISSOURI, etc., et al. March 1, 1920. In error to the Supreme Court of the State of Missouri. For opinion below, see 275 Mo. 67, 204 S. W. 386. Mr. Eugene C. Brokmeyer, of Washington, D. C., for plaintiff in error. PER CURIAM. Dismissed for want of jurisdiction upon the authority of City of Pawhuska v. Pawhuska Oil & Gas Co., 250 U. S. 394, 39 Sup. Ct. 526, 63 L. Ed. 1054. See City of Chicago v. Dempey, 250 U. S. 651, 40 Sup. Ct. 53, 63 L. Ed. 1189, decided Nov. 10, 1919. (251 U. S. 547) No. 687. POSTAL TELEGRAPH-CABLE COMPANY, petitioner, v. BOWMAN & BULL 851. (251 U. S. 562) No. 688. The MALLEABLE IRON RANGE No. 215. The STATE OF MISSOURI at the relation of The CITY OF SEDALIA, plaintiff in error, v. The PUBLIC SERVICE COMMISSION OF MISSOURI, etc. March 1, 1920. In error to the Supreme Court of the COMPANY, petitioner, v. Fred E. LEE, as adState of Missouri. For opinion below, see 275 Mo. 201, 204 S. W. 497. Mr. E. C. Brok-ministrator, etc. March 1, 1920. For opinion meyer, of Washington, D. C., for plaintiff in below, see 263 Fed. 896. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied. error. PER CURIAM. Dismissed for want of jurisdiction upon the authority of City of Pawhuska v. Pawhuska Oil & Gas Co., 250 U. S. 394, 39 Sup. Ct. 526, 63 L. Ed. 1054. See City of Chicago v. Dempey, 250 U. S. 651, 40 Sup. Ct. 53, 63 L. Ed. 1189, decided Nov. 10, 1919. (251 U. S. 547) No. 277. Laforest L. SIMMONS, plaintiff in error, v. Joe DUART. March 1, 1920. In error to the Supreme Judicial Court of the State of Massachusetts. For opinion below, see Duart v. Simmons, 231 Mass. 313, 121 N. E. 10. Mr. Edward C. Stone, of Boston, Mass., for plaintiff in error. Mr. David R. Radovsky, of Fall River, Mass., 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). No. 125. Kate C. ARCHER, administratrix of George F. Archer, deceased, et al., appellants, v. The UNITED STATES; and No. 220. The UNITED STATES, appellant, v. Kate C. ARCHER, administratrix of George F. Archer, deceased, et al. March 1, 1920. For opinion below, see 53 Ct. Cl. 405. Messrs. Percy Bell, of Greenville, Miss., and T. M. Miller, of New Orleans, La., for appellants The Attorney General for the United States. Appeals from the Court of Claims. Judgment affirmed by an equally divided Court. (251 U. S. 568) (40 Sup.Ct.) Prudential Ins. Co. of America, 209 S. W. 928. No. 14, Original. The STATE OF NEW Mr. Samuel W. Fordyce, Jr., of St. Louis, Mo., YORK, complainant, v. INTERNATIONAL for plaintiff in error. NICKEL COMPANY. March 1, 1920. Messrs. F. La Guardia and Edgar Bromberger, both of New York City, and Merton E. Lewis, of Rochester, N. Y., for complainant. Messrs. W. J. Curtis and Ligon Johnson, both of New York City for respondent. Dismissed, per stipulation. (251 U. S. 568) No. 477. WYSONG & MILES COMPANY et al., plaintiffs in error, v. PLANTERS' NATIONAL BANK OF RICHMOND. March 1, 1920. In error to the Supreme Court of the State of North Carolina. For opinion below, see Planters' Nat. Bank of Virginia v. Wysong & Miles Co., 177 N. C. 380, 99 S. E. 199. Mr. Thomas J. Jerome, of Greensboro, N. C., for plaintiffs in error. Mr. Garland S. Ferguson, Jr., of Greensboro, N. C., for defendant in error. Dismissed, per stipulation. (251 U. S. 568) No. 478. WYSONG & MILES COMPANY et al., plaintiffs in error, v. BANK OF NORTH AMERICA, PHILADELPHIA, PA. March 1, 1920. In error to the Supreme Court of the State of North Carolina. For opinion below, see Bank of North America v. Wysong & Miles Co., 177 N. C. 394, 99 S. E. 207. Mr. Thomas J. Jerome, of Greensboro, N. C., for plaintiffs in error. Mr. Garland S. Ferguson, Jr., of Greensboro, N. C., for defendant in error. Dismissed, per stipulation. PER CURIAM. Dismissed for want of jurisdiction upon the authority of Schlosser v. Hemphill, 198 U. S. 173, 175, 25 Sup. Ct. 654, 49 L. Ed. 1000; Louisiana Navigation Co. v. Oyster Commission of Louisiana, 226 U. S. 99, 101, 33 Sup. Ct. 78, 57 L. Ed. 138; Gray's Harbor Co. v. Coats-Fordney Co., 243 U. S. 251, 255, 37 Sup. Ct. 295, 61 L. Ed. 702; Bruce v. Tobin, 245 U. S. 18, 19, 38 Sup. Ct. 7, 62 L. Ed. 123. (252 U. S. 567) No. 669. GULF & SHIP ISLAND RAIL ROAD COMPANY et al. plaintiffs in error, v. Carl BOONE et al., etc. March 8, 1920. In error to the Supreme Court of the State of Mississippi. For opinion below, see 82 South. 335. Messrs. B. E. Eaton, of Gulfport, Miss., and T. J. Wills, of Raleigh, Miss., for petitioner. Mr. George Anderson, of Vicksburg. Miss. (Messrs. Anderson, Vollor & Kelly, of Vicksburg, Miss., A. W. Dent, of Mendenhall, Miss., and E. L. Dent, of Collins, Miss., of counsel), for defendants in error. PER CURIAM. Dismissed for want of jurisdiction upon the authority of McCorquodale v. Texas, 211 U. S. 432, 29 Sup. Ct. 146, 53 L. Ed. 269; 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. 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. (252 U. S. 567) No. 692. CHEATHAM ELECTRIC SWITCHING DEVICE COMPANY, appellant, v. TRANSIT DEVELOPMENT COMPANY et al. March 8, 1920. Appeal from the District Court of the United States for the Eastern District of New York. Messrs. O. Ellery Edwards, Jr., and Albert M. Austin, both of New York City, for plaintiff. Mr. Thomas J. Johnston, of New York City (Messrs. Emery, Varney, Blair & Hoguet, of New York City, of counsel), for appellees. PER CURIAM. Dismissed for want of jurisdiction upon the authority of Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31, 37, 14 Sup. Ct. 4, 37 L. Ed. 986; Brown v. Alton Water Co., 222 U. S. 325, 332-334, 32 Sup. Ct. 156, 56 L. Ed. 221; Metropolitan Water Co. v. Kaw Valley District, 223 U. S. 519, 522, 32 Sup. Ct. 246, 56 L. Ed. 533; Shapiro v. United States, 235 U. S. 412, 416, 35 Sup. Ct. 122, 59 L. Ed. 291; and see Red Jacket, Jr., Coal Co. et al. v. United Thacker Coal Co., 248 U. S. 531, 39 Sup. Ct. 5, 63 L. Ed. 405. (252 U. S. 568) No. Original. UNION TRUST COMPANY v. WOODWARD & LOTHROP. March 8, 1920. Petition for allowance of an appeal herein denied. (252 U. S. 568) No., Original. Ex parte In the matter of James F. BISHOP, administrator of the estate of Herman A. RISTOW, deceased, pe |