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ment of the treaty funds, who were guilty of defalcations of this and other moneys to the aggregate amount of $18,202.19. This was allowed.

$279

[1] As to the item of $4,560 allowed as the value of horses killed by the Sioux Indians, we conclude that the objection of the government is well founded. The obligation of the treaty was to protect the Omahas from *By the seventh article of the treaty the the Sioux and other hostile tribes "as long United States agreed to protect the Omahas as the President may deem such protection from the Sioux and all other hostile tribes necessary." The obligation depended upon as long as the President might deem such an exercise of discretion by the President. protection necessary. The court found that There is no finding of a failure to provide after the treaty the Sioux made repeated at- any protection deemed by the President to be tacks upon the Omahas in the year of re- necessary; hence nothing to create a liabilmoval and subsequent years; that the Unit-ity, legal or equitable, under the treaty ed States was called upon by the Omahas to clause. protect them, and such protection was necessary as soon as they removed to their new home and for several years thereafter, but no protection was afforded them by the United States. The Sioux killed 22 Omahas and stole 152 horses; the latter worth $30 per head. The court allowed $4,560 for the horses, but made no allowance for the Indians

killed.

By a treaty concluded March 6, 1865 (14 Stat. 667), the United States agreed to pay the Omahas for the cession of a part of their reservation the sum of $50,000, to be expended "for goods, provisions, cattle, horses," etc., for their benefit. Pursuant to this, as the Court of Claims found, 103 head of stock cattle were delivered in the year 1867, for which $3,432.99 was paid out of money belonging to the Omahas. "These cattle, when they reached the reservation, were in bad condition, and 50 of them died," of an average value of $33.33 per head; the 50 being worth $1,666.50. This sum was allowed.

Under article 4 of the treaty of 1854 and article 2 of the treaty of 1865 certain moneys were to be or might be expended for the benefit of the Indians in the way of improvements upon their reservation, and in other ways. Under these provisions, in the year 1875 an infirmary was constructed upon the Omaha and Winnebago consolidated reservation. The Court of Claims found that this building was not used, and was not such a building as was contemplated by the treaties with the Omahas, and that, of its cost, $3,127.08 was paid out of money belonging to

them. This sum was allowed.

The principal reason for the government's

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The item of $18,202.19 allowed for defalcations of the Indian agents is not disputed.

[2, 3] The government contests the allowance for the stock cattle upon the ground that the fact that they were in bad condition when they reached the reservation is not sufficient to show that they were in such condition when purchased; it being suggested that their defective condition upon reaching the reservation may have been due to the rigors and hardships of the drive from the market to the reservation. We cannot so interpret the finding, deeming its necessary import to be that the cattle either were in bad condition when purchased or were badly cared for event the fault lay with the agents of the on the way to the reservation. In either United States, and the Indians were entitled to credit for the sum allowed on this ac

count.

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[4-6] The allowance for the infirmary is disputed upon the ground that the treaties, fairly construed, gave authority for expending moneys of the Omahas for this purpose, cle 4 of the treaty of 1854, authorizing the especially the very general language of artiPresident to expend a part of the fund “for such beneficial objects as in his judgment

will be calculated to advance them in civilization" and "for medical purposes." We construe the finding, "This building was not used, and it was not such a building as was contemplated by the treaties," as meaning, not that a building of this general character was not contemplated, but that the particular building was not what it ought to have been, and not suitable for the use of the Indians. So construed, it is either a finding

finding of mixed fact and law, where the question of law is inseparable. In the latter case, as in the former, the finding, on familiar principles, is not reviewable. Ross v.

appeal lay in *the award to the tribe of $94,739.54 for the excess land north of the divid-upon a mere question of fact, or at most a ing line mentioned in the treaty; it having been contended in the court below that the tribe owned none of that land. The Court of Claims having found to the contrary, the government moved this court, after taking | Day, 232 U. S. 110, 116, 117, 34 Sup. Ct. 233, appeal, for an order remanding the case, with directions for further findings on the question. This motion having been overruled, as well as a counter motion submitted by the claimant for a certification of the entire record to this court, the government concedes that it cannot contest the correctness of the judgment upon this item.

58 L. Ed. 528, and cases cited. The fact that the building was not used shows that the tribe did not accept it, and received no benefit from it. And since, because of its unfitness, they were not obliged to accept it, the expenditure of their money in its construction was a misappropriation of funds of the tribe "for purposes not for its material bene

(40 Sup.Ct.)

*283

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 [7] Upon the cross-appeal, assignments of error are based upon the disallowance of in- *simply a present cession, with a covenant for terest. As to the $94,739.54 awarded for the payment of the consideration thereafter, no land north of the dividing line in excess of mention being made of interest. Clearly, the 300,000 acres, it is contended that payment provision of section 177, Judicial Code of this consideration was a concurrent con- (Comp. St. § 1168), is applicable: dition 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

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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

"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."

[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. 485, 28 L. Ed. 987. Nor does United States v. Old Settlers, 148 U. S. 427,

Tillson

a

148 U. S. 433, 449, 451, 452, 478, 13 Sup. Ct. 650, 37 L. Ed. 509.

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 pay-13 Sup. Ct. 650, 37 L. Ed. 509, support the ment of the consideration money, or any part claim for interest, for there the particular of it, is untenable; hence there was no question was a subject of difference in the such trust as is asserted, and the price of negotiation that preceded the treaty; the land was fixed by the treaty itself. By clause of the treaty itself provided that it article 1 there was a cession in præsenti of should be submitted to the Senate of the the land south of the described line, with United States for decision; the Senate ala proviso that if upon exploration the coun-lowed interest; and its determination was try north of the line did not prove to be a accepted by the United States as valid and satisfactory and suitable location for the binding. This court held that the decision Indians the President might, with their con- of the Senate was controlling, and that sent, set apart and assign to them a suitable therefore interest must be allowed upon that residence, in which case all of the country | part of the claim to which it applied. See 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 con- Mr. Justice MCREYNOLDS took no part in sideration is negatived, and this as truly with the consideration or decision of this case.

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.

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*The judgment will be reversed as to the the Sioux Indians, and in other respects afsum of $4,560`awarded for horses killed by firmed.

Reversed in part; affirmed in part.

(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.

MASTER AND SERVANT 69-INSOLVENT RAIL-
ROAD'S WAGE AGREEMENT HELD NOT FORBID-

DEN BY FEDERAL ACT.

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.

The Act in question, known as the Adamson Law, was passed to meet the emergency created by the threat of a general railroad 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 rail

Suit by the Fort Smith & Western Rail-road traffic suddenly stopped, Congress could road 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.

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 opinion of the Court.

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*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.

the general objections to the Act that were But the bill in Wilson v. New raised only common to every railroad.

In that case it

This is a bill in equity brought by the Fort Smith and Western Railroad Company 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 contion upon its own independent judgment as to fiscation to a judicial tribunal for a determinaboth 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 DENY-
ING COURTS JURISDICTION TO EXERCISE INDE-
PENDENT 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 their own independent judgment, on an appeal

But that is the present case. An insolvent road had succeeded in making satisfactory | from the Public Service Commission's order

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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
BOROUGH et al.

(Argued Oct. 15, 1919. Restored to Docket
for Reargument Jan. 12, 1920. Reargued
March 5 and 8, 1920. Decided June 1, 1920.)

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-
CESS REQUIRES OPPORTUNITY FOR JUDICIAL
DETERMINATION OF REASONABLENESS OF
RATES PRESCRIBED BY COMMISSION.

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

21

SERVICE COMMISSIONS
PUBLIC UTILITY HELD NOT TO HAVE LOST
RIGHT TO JUDICIAL DETERMINATION BY AP-
PEALING, 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
CHARACTER.

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 A decree of the Valley Water Company. 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 In all such cases, if the owner claims condefendants in error. fiscation of his property will result, the state must provide a fair opportunity for submit

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*Mr. Justice MCREYNOLDS delivered the ting that issue to a judicial tribunal for 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.

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; R., 241 U. S. 533, 538, 36 Sup. Ct. 715, 60 L. Missouri v. Chicago, Burlington & Quincy R. Ed. 1148; Oklahoma Operating Co. v. Love (March 22, 1920), 252 U. S. 331, 40 Sup. Ct.

Claiming the commission's valuation was much too low and that the order would | 338, 64 L. Ed. 596. 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.

[1, 2] The order here involved prescribed a complete schedule of maximum future rates and was legislative in character. Prentis v. Atlantic Coast Line, 211 U. S. 210, 29 Sup. Ct. 67, 53 L. Ed. 150; Lake Erie & Western R. R.

[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.

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*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 Procedure Before the Commission and upon Appeal." Certain opinions by the Supreme Court seem to indicate that all objections to the commission's orders must be determined upon appeal-St. Clair Borough v. Tamaqua

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