(46 S. Ct.) provisions of the act, and that if by amend- The language of the statute evidences an intention to set a definite limit to the period within which an action may be brought under it without reference to the exigencies which arise from the administration of a decedent's estate. The statute relates not only to causes of action for wrongful death but to causes of action for other injuries. Where the cause of action for personal injury survives to personal representatives of an injured employee who dies after the injury from other causes, the language of the statute seems peremptorily to require the action to be brought within two years from the time of injury, without regard to any intervening period after death when there is no executor or administrator. Compare Whipple v. Johnson, 49 S. W. 827, 66 Ark. 204; Gibson v. Ruff, 8 App. D. C. 262; Sammis v. Wightman, 12 So. 526, 31 Fla. 10; Sanford v. Sanford, 62 N. Y. 553, 555. [2] It is argued that as it was provided by Lord Campbell's Act that the period of limitation should run from the time of death, the omission of that phraseology from the Employers' Liability Act indicates that it was the intention of Congress that the statutory period should run from a different time, namely, from the time of the appointment of an administrator. This argument, however, leaves out of account the fact that the present statute deals with causes of action arising from personal injury as well as causes of action arising from a wrongful death. The limitation that no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued, applies to both. This accounts for the omission of any specific reference to death in fixing the period of limitation; and the fact that the limitation is made applicable equally to the two causes of action, one of which admittedly "accrues" on the happening of the events which fix the defendant's liability, leads persuasively to the conclusion that a like test was intended for determining when the cause of action accrued for wrongful death. Every practical consideration which would lead to the imposition of any period of limitation, would require that the period should begin to run from the definitely ascertained time of death rather than the uncertain time *65 of the appointment of an administrator. six years after the death. No reason appears, Here the appointment was not made until if the opinion of the court below is followed, why the time might not have been extended indefinitely by the failure to apply for administration. The only persons who can procure the appointment of an administrator are ordinarily spouse, next of kin, or *creditors of the decedent. Certainly the common carrier would have no standing to make the application. The very purpose of a period of limitation is that there may be, at some definitely ascertained period, an end to litigation. If the persons who are the designated beneficiaries of the right of action created may choose their own time for applying for the appointment of an administrator and consequently for setting the statute running, the two-year period of limitation so far as it applies to actions for wrongful death might as well have been omitted from the statute. An It cannot be supposed that Congress, in enacting the statute intended to impose a fixed limitation of two years within which all actions for personal injury must be begun, regardless of death and of the time of appointment of an administrator of the injured employee, and at the same time intended to allow an indefinite period within which application may be made for the appointment of an administrator as the prerequisite to an action to recover for wrongful death. Indeed the limitation would seem to be more necessary in the case of personal injuries than in the case of a wrongful death; for in the former case some part of the period of limitations will have run at the time of death. interpretation of a statute purporting to set a definite limitation upon the time of bring This inconsistency is avoided if the word “ac crued," whether applied to causes of actioning action, without saving clauses, which for personal injury or for wrongful death, *64 be taken to apply *uniformly to the time when the events have occurred which determine that the carrier is liable, even though the particular person through whose agency the liability is to be enforced has not been designated. would, nevertheless, leave defendants subject indefinitely to actions for the wrong done, would, we think, defeat its obvious purpose. There is nothing in the language of the statute to require, or indeed to support, such an interpretation. Judgment of the Supreme Court of Pennsylvania is reversed. (270 U. S. 587) (Argued March 5, 1926. Decided April 12, 1926.) Nos. 193, 670. 1. Appeal and error -74-Order granting interlocutory injunction is not appealable, where permanent injunction was later granted. Where permanent injunction was entered after previous order granting interlocutory injunction, the order granting interlocutory injunction is not appealable. 2. Appeal and error 920 (3)-Averments of bill for injunction must be taken as true on appeal from decree granting permanent injunction after motion to dismiss bill was overruled. Averments of bill to enjoin members of State Commerce Commission and Attorney General from enforcing schedule of rates must be taken as true on appeal from permanent injunction, entered after motion to dismiss the bill was overruled. 5. Courts 493(3)-Failure of Illinois Commerce Commission to act on the schedule of rates for two years after order of state court, while telephone company was operating at loss, held to present case for equitable relief in federal court. Failure of Illinois Commerce Commission to act for a period of two years after decree of state court reversing order in respect to schedule of rates filed by telephone company, during which time company was operating at a loss, held to present case for equitable relief in federal court. 6. Telegraphs and telephones 33 (1)—Telephone company subscribers are bound by decree enjoining state commission from enforcing rates. Illinois Commerce Commission represents the public, and especially the subscribers of telephone company, and subscribers are properly bound by decree enjoining commission from attempting to enforce schedule of rates alleged to be confiscatory. Appeals from the District Court of the United States for the Southern District of Illinois. Suits by the Illinois Bell Telephone Com 3. Public service commissions 192, New, vol. 12A Key-No. Series-Injunction to re-pany against Frank L. Smith and others, constrain state Commerce Commission from enforcing confiscatory telephone rates will not be denied, because complainant has not exhausted its legislative remedies, on the ground that order of commission putting into force rates in one schedule disposed of second schedule filed while first was pending, where commission held hearings and otherwise recognized pendency of second schedule. Where state Commerce Commission had approved schedule of rates filed by telephone company, and second proposed schedule of rates was filed while first schedule was pending, the order putting into force the rates in first schedule was not a finding against the second, where commission, after disposing of first schedule, treated the second as pending and made orders in respect thereof, and after reversal of order for its permanent suspension restored it to docket and regarded it as properly pending, and injunction to restrain commission from enforcing confiscatory rates will not be denied on ground that complainant had not exhausted legislative remedies. 4. Constitutional law ~~298(1)—Public Service Commissions 1912, New, vol. 12A Key-No. Series-Property may be as effectively taken by long-continued and unreasonable delay in putting an end to confiscatory rates as by express affirmance, and injured public service company need not indefinitely await decision of rate-making tribunal before applying for equitable relief (Const. U. S. Amend. 14). stituting the Illinois Commerce Commission, and Oscar E. Carlstrom, Attorney General of the state of Illinois. From a decree granting a permanent injunction, and from an order previously entered granting an interlocutory injunction, defendants separately appeal. Appeal from order granting interlocutory injunction dismissed, and decree affirmed. Messrs. Harry C. Heyl and R. H. Radley, both of Peoria, Ill., and Edward J. Brundage and Oscar E. Carlstrom, both of Chicago, Ill., for appellants. Mr. Wm. D. Bangs, of Chicago, Ill., for appellee. *588 *Mr. Justice SUTHERLAND delivered the opinion of the Court. The telephone company, an Illinois corporation, owns and operates a telephone system in the city of Peoria and vicinity. It brought suit on June 18, 1924, against appellants (members of the state Commerce Commission and Attorney General of the state of Illinois), to enjoin them from enforcing or attempting to enforce a schedule of rates alleged to be confiscatory, and from taking any steps or proceedings against the company by reason of the collection by it of rates and charges under another and higher schedule. tion to dismiss the bill was overruled, and, Property may be as effectively taken in vio- upon the bill and attached exhibits and affilation of Const. U. S. Amend. 14 by long-con- davits, appellants refusing to plead further, tinued and unreasonable delay in putting an end to confiscatory rates as by express affirmance a permanent injunction in accordance with of them, and injured public service company is the prayer was granted by the lower court. not required indefinitely to await decision of The appeal in No. 670 is from that decree. rate-making tribunal before applying to federal [1] The appeal in No. 193 is from an orcourt for equitable relief. der previously entered, granting an interloc For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes A mo *589 (46 S. Ct.) utory injunction. A motion to dismiss that | 1922. appeal, on the ground that the order for the interlocutory injunction had become merged in the final decree, was submitted, but consideration postponed to the hearing on the merits. The motion is now granted *and the appeal in No. 193 dismissed. Shaffer v. Carter, 40 S. Ct. 221, 252 U. S. 37, 44, 64 L. Ed. 445; Pacific Tel. Co. v. Kuykendall, 44 S. Ct. 553, 265 U. S. 196, 205, 68 L. Ed. 975. In the cases cited, both interlocutory and permanent injunctions had been denied; here they were granted; but the record discloses no reason which prevents the same principle from being applicable. On July 5, 1923, the company called attention to the delay in the determination of the cause, and to the fact that the revenues derived from the operation of the Peoria exchange fell short of meeting its operating expenses, and requested the commission to set the cause for an early hearing. This request was ignored, and the commission [2] The averments of the bill, which, upon this record, must be taken as true, disclose the following facts: The operations of the company were conducted with reasonable economy. For the year 1921, the net revenues, after payment of operating expenses and taxes, were, in round figures, $46,000; for the year 1922, there was a deficit of over $48,000; for 1923, a deficit of nearly $65,000; and a deficit for each month of the year 1924 preceding the filing of the bill. The fair value of the prop erty, including working capital, material and supplies, and going value, was at least $3,800.000. In July, 1919, the predecessor in ownership of the company filed with the commission a schedule of rates covering the telephone service in question, which the commisson, by final order after a hearing, approved. Prior to that order, however, the predecessor of the company had filed with the commission a second schedule of increased rates, to become effective May 1, 1920. The commission first suspended the effective date of this schedule until August 29, 1920, and then, by successive orders. until February 26, 1921, August 26, 1921, and February 23, 1922. The present company, in December, 1920, succeeded to the property and rights of its predecessor. During 1920, hearings were had before the commission in respect of the justice and reasonableness of the rates proposed by the second schedule, but no determination of the matter was reached. The commission, although often requested by the company to do so, thereafter failed and refused to hold further hearings, but on October 31, 1921, entered an order purporting permanently to *590 ever since has failed and refused to determine the issues in the cause, or to determine whether the rates and charges provided in the second schedule are just and reasonable, but has continued in effect the rates and charges contained in the first schedule approved by it. These rates, not only do not yield a fair return, but are insufficient to pay the operating cost of rendering telephone service to the subscribers and patrons of the exchange. Finally, it is alleged that the company is deprived of its property without due process of law, and is denied the equal protection of the law, in violation of the Fourteenth Amendment to the federal Constitution. [3] This conclusion, which necessarily results from the facts, is not seriously challenged, but a reversal of the decree below is sought on the ground that the company, prior to filing its bill, had not exhausted its legislative remedies. The argument seems to be that the second proposed schedule of rates, filed while the first was pending, purported to cancel the first schedule; that the order *591 putting into *force the rates in the first schedule was in effect a finding against the second, and put an end to it; that no legal application for an increase of rates has since been made; therefore, when the suit was brought nothing was before the commission upon which that body could lawfully act. The short answer is that the commission, after disposing of the first schedule, had uniformly treated the second as pending; had held hearings and made interlocutory orders in respect of it; had entered an order for its permanent suspension; after reversal by the state court on appeal, by which tribunal it stored it to the docket for further proceedwas regarded as properly pending, had reings; and had held further hearings. To say now that all this shall go for naught, and that the company must institute another and distinct proceeding, would be to put aside substance for needless ceremony. sus*pend, cancel, and annul the second sched- [4, 5] It thus appears that, following the ule. A hearing was applied for and denied. decree of the state court reversing the perThereupon an appeal was prosecuted to the manent order in respect of the second schedcircuit court of Peoria county, and that court, ule and directing further proceedings, the on April 6, 1922, reversed the commission's commission for a period of two years reorder and remanded the cause for further mained practically dormant, and nothing in proceedings. The commission redocketed the the circumstances suggests that it had any cause and had hearings in June, July, and intention of going further with the matter. September, 1922, after which the company For this apparent neglect on the part of the filed its written motion requesting the com- commission, no reason or excuse has been mission to make effective a temporary sched- given; and it is just to say that, without exule of rates pending a final determination. │planation, its conduct evinces an entire lack This motion was denied on September 28, of that acute appreciation of justice which should characterize a tribunal charged with an action under Merchant Marine Act 1920, § *592 2. Courts 489(1)-State courts have con- the rate-making tribunal before apply*ing to v. Kuykendall, supra, 204 (44 S. Ct. 553), and 3. Statutes 51-Section of Employers' Lia- bility Act limiting time for suit held incor- [6] Some complaint is made to the effect Employers' Liability Act, § 6 (Comp. St. § 8662), relating to time of commencing action ence and incorporated in Seamen's Act 1915, § for personal injuries, was adopted by refer20, as amended by Merchant Marine Act, § 33 (Comp. St. Ann. Supp. 1923, § 8337a), and 4. Courts 489(1)—Jurisdiction of suits by Jurisdiction of suits under Merchant Ma rine Act, § 33 (Comp. St. Ann. Supp. 1923, § 5. Limitation of actions 2(4)-Seaman's ac- 1. Seamen 29 (5)-Seaman's action for in- Seaman's suit in state court for personal For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 6. Statutes 51. (46 S. Ct.) Adoption of earlier statute by reference makes it as much a part of a later act as though it had been incorporated at full length. On Writ of Certiorari to the Supreme Court of the State of California. pelican hook, which was a necessary part of the chain lashing used in carrying the cargo, had in it a flaw observable upon ordinary inspection; that this hook was not inspected; and that it broke by reason of this flaw, causing the injuries in question. Davenport demurred to the complaint, on the ground, inter Action by E. B. Engel against J. O. Daven-alia, that the cause of action was barred by port and others. Judgment on demurrer of section 340, subd. 3, of the California Code of the named defendant, who alone was served Civil Procedure, which required an action for with process, was affirmed by Supreme Court of California (228 P. 710, 194 Cal. 344), and personal injury caused by wrongful act or negligence to be commenced within one year. plaintiff brings certiorari. Reversed and reThis demurrer was sustained, without leave manded. to amend; and judgment was entered in fa Mr. H. W. Hutton, of San Francisco, Cal., vor of Davenport, which was affirmed, on apfor petitioner. Messrs. Edward J. McCutchen, Farnham P. Griffiths, McCutchen, Olney, Mannon & Greene, all of San Francisco, Cal., for respondents. *34 peal, by the Supreme Court of the State. 228 *Mr. Justice SANFORD delivered the opin- Marine Act, of which the State courts have ion of the Court. jurisdiction concurrently with the Federal The questions involved in this case relate courts; and that, by virtue of section 6 of to the effect of section 33 of the Merchant the Employers' Liability Act, 35 Stat. 65, c. Marine Act of 1920. 41 Stat. 988, c. 250 (Comp-149 (Comp. St. § 8662), incorporated in the St. Ann. Supp. 1923, § 8337a) which amended section 20 of the Seamen's Act of 1915, 38 Stat. 1164, c. 153, to read as follows: "That any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located." Engel, the petitioner, brought this action at law, in January, 1923, in a Superior Court of California, against the respondent Davenport, one of the owners of a vessel on which he had been employed as a seaman,1 to recover damages for personal injuries suffered, in April, 1921, while he was engaged in placing a chain | lashing around part of a cargo of lumber that had been taken on board the vessel at a port of landing. The complaint alleged, in substance, that the vessel had been negligently sent upon her voyage when unseaworthy and equipped with *defective appliances, in that a *35 1 Although other owners of the vessel were also named as defendants in the complaint, the record does not indicate that any of them were served with process or entered their appearance, the suit apparently having been prosecuted against Davenport alone. provisions of the Merchant Marine Act, it might be commenced within two years after the cause of action accrued, irrespective of the State statute. *36 It is settled by the decision in Panama Railroad v. Johnson, 44 S. Ct. 391, 264 U. S. 375, 68 L. Ed. 748, that section 33 of the Merchant Marine Act is an exercise of the power of Congress to alter or supplement the maritime law by changes that are country-wide and uniform in operation; that it brings into the maritime law new rules drawn from the Employers' *Liability Act and its amendments— adopted by the generic reference to "all statutes of the United States modifying or extending the common law right or remedy in cases of personal injuries to railway employees"-and "extends to injured seamen a right to invoke, at their election, either the relief accorded by the old rules or that provided by the new rules"; that is, that it grants them, as an alternative, the common law remedy of an action "to recover compensatory damages under the new rules as distinguished from the allowances covered by the old rules," which, as a modification of the maritime law, may be enforced through appropriate proceedIngs in personam on the common law side of the courts. [1] 1. The present suit is not brought mere For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |