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(251 U, S. 366)

and the Calistoga Electric Company, also a NAPA VALLEY ELECTRIC CO. v. BOARD California corporation, has been for 7 years OF RAILROAD COM'RS OF CALI.

a distributing agency of the Electric Company FORNIA et al.

and the latter is not as to the Calistoga Comi(Argued Dec. 12, 1919. Decided Jan. 19, 1920.) pany a public utility. By virtue of certain

circumstances the Electric Company entered No. 401.

into a contract with one E. L. Armstrong by

which it agreed not to extend its lines into 1. APPEAL AND ERROR O927(2)—THAT PETI- Calistoga territory, and Armstrong agreed to TION TO STATE SUPREME COURT AUTHORIZED buy from it all of the electricity to be sold by DECISION ON THE MERITS PRESUMED TO SUSTAIN DISMISSAL IN FEDERAL COURT BECAUSE him for 18 years. At that time the Electric

• 368 DENIAL OF PETITION WAS RES JUDICATA.

Company under the *laws of California had On appeal from decree of federal District Court dismissing bill on the ground that the a right to extend its lines and become a comcontroversy was res judicata by reason of de petitor of other companies or individuals. nial of petition to state Supreme Court under September 14, 1911, the Calistoga Company Public Utilities Act Cal. 8 67, for writ of review became the successor in interest of Armto the commission, it may be presumed that the strong and to his rights and obligations unpetition, not in the record, circumstantially ex- der the contract with the Electric Company, hibited and submitted to the court the ques- and the Calistoga Company acknowledged the tions it was authorized to entertain, including fact of such succession and continued to buy a determination whether the commission's order violated any right under the federal Constitu- its electricity from the Electric Company at tion.

the rates set forth in the contract, until 2. JUDGMENT 560 — DENIAL OF PETITION Commission to set aside the contract and

November 18, 1913, when it petitioned the FOR WRIT OF REVIEW WITHOUT OPINION IS ADJUDICATION OF MERITS.

compel the Electric Company to accept other As the state Supreme Court, on petition un- rates than those mentioned in the contract. der Public Utilities Act Cal. $ 67, for writ of

The Electric Company answered the petireview to the commission, can, without having tion, set up the contract and alleged that the record certified, decide the questions in any change in its rates would be a violation volved, they being shown on the face of the pe- of section 10, article 1, of the Constitution of tition, its mere denial in such a case of the peti- the United States and the Fourteenth Amendtion, without opinion, is an adjudication of such

ment thereto. questions, thereafter assignable as res judicata.

January 24, 1914, the Commission institutAppeal from the District Court of the

ed an investigation on its own motion which United States for the Northern District of with the petition of the Calistoga Company California.

was consolidated. The petitions were heard

together upon evidence and submitted. Suit by the Napa Valley Electric Company The Commission subsequently made an or against the Board of Railroad Commissioners der fixing rates much less than those of the of California and others. Bill dismissed (257 contract. Fed. 197), and plaintiff appeals. Affirmed. June 20, 1914, the Electric Company filed a

petition for rehearing, setting up its rights *Messrs. Milton T. U'Ren, of San Francisco, under the Constitution of the United States. Cal., and D. L. Beard, of Napa, Cal., for ap- A rehearing was denied. pellant.

May 1, 1914, the Electric Company and the Mr. Douglas Brookman, of San Francisco, Calistoga Company entered into an agreement Cal., for appellees.

fixing rates subject to the approval of the Commission which the Calistoga Company

agreed to secure. It did secure an informal Mr. Justice MCKENNA delivered the opin

approval of them and paid them until June ion of the Court.

27, 1916. Appeal from decree of the District Court

The rates fixed by the Commission nerer dismissing bill of appellant, herein called the became effective and therefore the Electric Electric Company, upon motion of appellees, Company did not petition for a review of herein called the Commission.

them by the Supreme Court of the state nor The ground of the motion and the decree

commence proceedings in any court of the sustaining it was that it appeared from the United States to enjoin the order establishing averments of the bill that the controversy it them or to have it set aside as null and void. 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 cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Inderas

.367

.369

(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 The contention is based on section 67 of the rates fixed in the written contract of Sep- Public Utilities Act of the state. St. 1911 tember 15, 1914, and made the reduced rates (Ex. Sess.) p. 18. The section is too long to effective December 20, 1916.

quote. It is part of the procedure provided A rehearing was denied May 24, 1917, and by the state for the execution of its policy on June 20, 1917, the Electric Company duly in regard to the public utilities of the state, filed a petition in the Supreme Court of the and affords a review of the action of the Comstate of California praying that a writ of mission regulating them. It is quite cirreview issue commanding the Commission on cumstantial and explicit. It provides for a a day named to certify to the court a full and review of the action of the Commission by complete record of the proceedings before it, writ of certiorari or review from the Supreme the Commission, and that upon a return of Court of the state which "shall direct the the writ the orders and decisions of the Com- commission to certify its record in the case mission be reversed, vacated and annulled to the court,” the cause to "be heard on the upon the ground that they violated the com- record of the commission as certified by it." pany's rights under the Constitution of the No other evidence is to be received and the United States, particularly under section 10, review is confined to an inquiry "whether the article 1, and under section 1 of article 14 of commission has regularly pursued its authorthe Amendments thereto. The Supreme

*371 Court of California denied the “petition for ity” or *whether its order or decision “violates writ of review and refused to issue a writ any right of the petitioner under the Conof review, as prayed for in said petition."

stitution of the United States or of the state On or about January 27, 1918, the Cali- of California." The findings and conclusions fornia Light & Telephone Company became a of the Commission on questions of fact are to party to the contracts between the Electric be final. The Commission and the parties Company and the Calistoga Company by rea

have the right of appearance and upon the son of conveyances from the latter company. hearing the court “shall enter judgment ei

In the present bill it is alleged that the or-ther affirming or setting aside the order or deders and decisions of the Commission were cision of the commission.” The Civil Code of illegal, were in excess of its jurisdiction and the state is made applicable so far as it is that the Electric Company has no adequate not inconsistent with the prescribed proremedy at law and prays a decree declaring ceedings and no court of the state except the the orders and decisions null and void, that Supreme Court to the extent specified shall they be enjoined of enforcement or made the have jurisdiction over any order or decision basis of suits against the company to enforce of the Commission except "that the writ of them.

mandamus shall lie from the Supreme Court +370

to the Commission in all proper cases." *The Commission and other defendants These provisions counsel insist were not obmoved to dismiss on the ground that it appear. served and that therefore there was not and ed from the allegations of the bill that "the could not have been "an adjudication of the subject-matter thereof was res judicata" and controversy" by the Supreme Court. There that there was no ground stated entitling the was nothing, it is insisted, but the Electric company to the relief prayed. The motion Company's petition before the court, and that was granted and to the decree adjudging a none of the essential requirements of section dismissal of the bill this writ of error is di- 67 were observed. No writ of review was isrected.

sued-none certified by the Commission or The District Court (Judge Van Fleet) based returned, no return day fixed or hearing had its ruling upon the allegations of the bill that on a certified record, no appearance of the the Electric Company filed in the Supreme parties, no order of the court affirming or setCourt a petition for a review of the decision ting aside of the Commission's order. In and order of the Commission and for their other words the substance of the contention annulment, and that the Supreme Court de is that the court instead of hearing refused to nied the petition.

hear, instead of adjudicating refused to adThe Electric Company to the ruling of the judicate, and that from this negation of accourt opposes the contention that the Supreme tion or decision there cannot be an assertion Court denied the company's "petition for a of action or decision with the estopping force preliminary writ and refused to even cause of res judicata assigned to it by the District the record in the case, certified by the Com-Court. mission to be brought up," and therefore [1] Counsel to sustain the position that he “simply refused to entertain jurisdiction of has assumed and contends for insists upon a the controversy." And it is the further con- literal reading of the statute and a discussion tention that the court could neither affirm of the elements of res judicata. We need not

FOB

TO

CAPITAL PUNISHMENT SUBJECT
LENGE FOR CAUSE.

follow counsel into the latter. They are the questions presented, and its subsequent +372

conclusive effect upon the rights of the Elec*familiar and necessarily cannot be put out of tric Company. Therefore the decree of the mind, and the insistence upon the literalism District Court is affirmed. 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

(251 U. S. 380) is not in the record. We may presume it was STROUD V. UNITED STATES. circumstantial in its exposition of the pro ceedings before the Commission and of the (Petition for Rehearing Received Jan. 5, 1920. latter's decisions and orders, and exhibited

Decided Jan. 19, 1920.) and submitted to the court the questions it

No. 276. was authorized to entertain-whether the Commission “pursued its authority, includirg 1. CRIMINAL LAW 116614(8)—DENIAL OP a determination of whether the order or de

CHALLENGE FOR CAUSE HARMLESS ERROB. cision” violated “any right” of the company

Where defendant, by the statute allowed 20 “under the Constitution of the United States peremptory challenges, was in fact allowed 21,

and it does not appear that any objectionable or of the state of California."

juror sat on the trial, his right to peremptory [2] Whether upon such an exhibition of challenge was not abridged to his prejudice by the proceedings and questions the court was

an erroneous denial of a challenge for cause.. required to pursue the details of the section

UNALTERABLY or decide upon the petition was a matter of 2. JURY Ow108—JUROR

CHALthe construction of the section and the procedure under it. And the Supreme Court has so decided. L. Ghriest, Petitioner, v. R. R. juror made it reasonably certain that in the

In a homicide case, where testimony of a Com'n, 170 Cal. 63, 148 Pac. 195; Mt. Konocti event of conviction for murder in the first de Light & Power Co. v. Max Thelen et al., 170 gree he would render no other verdict than one Cal. 468, 150 Pac. 359; E. Clemens Horst Co. which would require capital punishment, court v. R. R. Commission, 175 Cal. 660, 166 Pac. should have granted a challenge for cause. 804; Hooper & Co. v. R. R. Comm., 175 Cal. 811, 165 Pac. 689. In those cases

In Error to the District Court of the Unitthe applications for writs of certiorari ed States for the District of Kansas. Upon were denied, which was tantamount to a de-Petition for Rehearing. cision of the court that the orders and deci. Former opinion adhered to. sions of the Commission did not exceed its For former opinion, see 251 U. S. 15, 40 authority or violate any right of the sev- Sup. Ct. 50, 64 L. Ed. eral petitioners under the Constitution of the

Messrs. Isaac B. Kimbrell and Martin J. United States or of the state of California. O'Donnell, both of Kansas City, Mo., for And so with the denial of the petition of the plaintiff in error on petition for rehearing. Electric Company-it had like effect and was the exercise of the judicial powers of

Memorandum opinion by direction of the the court. And we repeat, to enable the invocation of such powers was the purpose of Court, by Mr. Justice DAY. section 67, and they could be exercised upon this court atfirmed the judgment of the Unit

In this proceeding on November 24, 1919, the display in the petition of the proceedings ed States District Court for the District of before the Commission and of the grounds

Kansas rendered upon a verdict convicting upon which they were assailed. And *we the plaintiff in error of murder in the first agree with the District Court that “the denial degree. of the petition was necessarily a final judicial A petition for rehearing has been presentdetermination,

based on the identi- ed. It has been considered, and we find cal rights" asserted in that court and repeat- occasion to notice only so much thereof as

*381 ed here. Williams v. Bruffy, 102 U. S. 248, 255, 26 L. Ed. 135. And further, to quote the refers to the refusal of the court below to

sustain the plaintiff in error's challenge for District Court:

cause as to the juror Williamson. The other “Such a determination is tis effectual as an grounds urged have been examined and estoppel as would have been a formal judgment found to be without merit. upon issues of fact. Calaf v. Calaf, 232 U. S.

Williamson was called as a juror, and, as 371, 31 Sup. Ct. 411, 58 L. Ed. 642; Hart Steel Co. et al. v. Railroad Supply Co., 244 U.

we said in our former opinion, was chalS. 294, 299, 37 Sup. Ct. 506, 61 L. Ed. 1148.” lenged for cause by the plaintiff in error.

This challenge was overruled, and the juror The court held, and we concur, that ab- was then challenged peremptorily by the acsence of an opinion by the Supreme Court did cused. The testimony of Williamson made not affect the quality of its decision or de- it reasonably certain that in the event of tract from its efficacy as a judgment upon | conviction for murder in the first degree he

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

.373

(40 Sup.Ct.) would render no other verdict than one, and later was peremptorily challenged by the which required capital punishment. Grant- plaintiff in error (printed transcript, page ing that this challenge for cause should have 143) and excused from the panel. H. A. been sustained, and that this ruling required Shearer's name does not appear upon the list the plaintiff in error to use one of his per- of those as to whom peremptory challenges emptory challenges to remove the juror from were made and sustained in plaintiff in erthe panel, we held that the refusal to sus- ror's behalf as given in the petition and affi- ' tain the challenge was not prejudicial error,

*382 as the record disclosed that the defendant davit for *a rehearing. It does appear in the was allowed 22 peremptory challenges, when transcript that plaintiff in error was allowed the law allowed but 20.

21 peremptory challenges, and it follows that [1, 2] In the petition for rehearing it is his right to exercise such challenges was not alleged that the record discloses that in fact abridged to his prejudice by the failure to the accused was allowed 20 peremptory chal- allow the single challenge for cause which in lenges and no more, and this allegation is our opinion should have been sustained by accompanied by an affidavit of counsel giv- the trial judge. Furthermore, the record ing the names of 20 persons challenged per- shows that after the ruling and challenge as emptorily by the plaintiff in error, and stat. to Williamson the plaintiff in error had other ing that no other peremptory challenges were peremptory challenges which he might have allowed to him at the trial.

used; and the record does not disclose that

In this statement the counsel is mistaken. An examina- See Spies v. Illinois, 123 U. S. 131, 168, 8

other than an impartial jury sat on the trial. tion of the original transcript, as also the Sup. Ct. 22, 31 L. Ed. 80, and cases cited. printed transcript, shows that a juror, H. It follows that the petition for rehearing A. Shearer, was called and examined upon must be denied. his voir dire (printed transcript, page 79), So ordered.

MEMORANDUM DECISIONS

DISPOSED OF AT OCTOBER TERM, 1919

251 U. S. 565)

of Washington, D. C., for plaintiff in error. No. 64. GREAT NORTHERN RAILWAY Dismissed with costs, on motion of counsel for COMPANY, plaintiff in error, v. The STATE the plaintiff in error. OF WASHINGTON. Jan. 5, 1920. In error to the Supreme Court of the State of Washington. For opinions below, see 97 Wash. 137,

(251 U. S. 541) 165 Pac. 1073, 167 Pac. 1117. Messrs. E. O. No. 251. George J. TWOHY, Executor, etc., Lindley, of St. Paul, Minn., F. V. Brown, of plaintiff in error, v. E. J. DORAN, CommissionSeattle, Wash., and F. G. Dorety, of St. Paul, er of the Revenue, et al. Jan. 5, 1920. In Minn., for plaintiff in error. Mr. W. V. Tanner, error to the Supreme Court of Appeals of the of Seattle, Wash., for State of Washington. State of Virginia. Mr. George Mason Dillard, Dismissed with costs, on motion of counsel for of Norfolk, Va., for plaintiff in error. Mr. J. the plaintiff in error.

D. Hank, Jr., of Richmond, Va., for defendant in error.

PER CURIAM. Dismissed for want of jurisNo. 80. H. TURNER et al., executors, etc., diction upon the authority of section 237 of plaintiffs in error, v. J. P. WADE, sheriff of the Judicial Code (Act March 3, 1911, c. 231, Brooks County, Georgia. Jan. 5, 1920. See,

36 Stat. 1156), as amended by the act of Sepalso, 147 Ga. 666, 95 S. E. 220. Messrs. John tember 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. D. Little, Arthur G. Powell, Marion Smith, and St. § 1214). Max F. Goldstein, all of Atlanta, Ga., for plaintiffs in error. Mr. Clifford Walker, of Mon

(251 V. S. 556) roe, Ga., for defendant in error. Ordered that No. 604. Carlos L. BYRON, petitioner, v. this case be restored to the docket for reargu- The UNITED STATES of America. Jan. 5, ment.

1920. For opinion below, see 259 Fed. 371.

Messrs. P. V. Davis and Edward M. Comyns, (251 U. S. 565)

both of Seattle, Wash., for petitioner. Mr. Frank No. 148. MAGMA COPPER COMPANY, K. Nebeker, Assist. Atty. Gen., and Mr. H. L. plaintiff in error, v. Charles RISSALA. Jan. Underwood, Sp. Assist. Atty. Gen., for the Unit. 6, 1920. In error to the District Court of the ed States. Petition for a writ of certiorari United States for the District of Arizona. to the United States Circuit Court of Appeals Messrs. Alex Britton and Evans Browne, both for the Ninth Circuit denied.

40 SUP.CT.-12

(251 U. S. 549)

Kansas. For opinion below, see 103 Kan. 347, No. 625. Lillian B. PEMBLETON, petition- 175 Pac. 153. Mr. Joseph G. Waters, of To er, v. ILLINOIS COMMERCIAL MEN'S AS- peka, Kan., for plaintiff in error. SOCIATION. Jan. 5, 1920. For opinion be

PER CURIAM. Dismissed for want of julow, see Pembleton v. Illinois Commercial Men's risdiction upon the authority of Consolidated Ass'n, 289 111. 99, 124 N. E. 355. Petition for Turnpike Co. v. Norfolk, etc., Ry. Co., 228 U. a writ of certiorari to the Supreme Court of S. 326, 334, 33 Sup. Ct. 510, 57 L. Ed. 857; the State of Illinois granted.

St. Louis & San Francisco R. R. Co. v. Shep

herd, 240 U. S. 240, 241, 36 Sup. Ct. 274, 60 (251 U. S. 556)

L. Ed. 622; Bilby v. Stewart, 246 U. S. 253, No. 626. The BALTIMORE DRY DOCK 257, 38 Sup. Ct. 264, 62 L. Ed. 701. & SHIP BUILDING COMPANY, petitioner, V. NEW YORK & PORTO RICO STEAM

(251 U. S. 541) SHIP 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 II., and Rob. V. Phillips, of Toledo, Ohio, for

plaintiff in error. United States Circuit Court of Appeals for the

Mr. Alex, C. King, Solicitor Fourth Circuit denied.

General, of Atlanta, Ga., and A. F. Myers, of
Washington, D. C., for the United States.

Messrs. Thos. H. Tracy and George D. Welles, (251 U. S. 565)

both of Toledo, Ohio, for Dail Overland Co. No. 130. William H. GARANFLO, petitioner, Amici Curiæ. v. The UNITED STATES of America; and

PER CURIAM. Dismissed for want of juNo. 131. Robert D. DUNCAN, petitioner, v. The UNITED STATES of America. Jan. 9, Newspaper Co. v. United States, 247 U. S.

risdiction upon the authority of (1) Toledo 1920. On petitions for writs of certiorari to 402, 410-411, 38 Sup. Ct. 560, 62 L. Ed. 1186; the United States Circuit Court of Appeals for Bessette v. W. B. Conkey Co., 194 U. S. 324, the Eighth Circuit. For opinion below, see 246 328-337, 24 Sup. Ct. 665, 48 L. Ed. 997; Fed. 910, 159 C. C. A. 182. Mr. Chester H. O'Neal v. United States, 190 U. S. 36, 37-38, Krum, of St. Louis, Mo., for petitioner. Mr. Assistant Attorney General Frierson, for the Houston & Texas Central Ry. Co., 150 U. S.

23 Sup. Ct. 776, 47 L. Ed. 945; (2) Carey v. United States. Dismissed for want of pros- 171, 14 Sup. Ct. 63, 37 L. Ed. 1041; Maynard ecution on motion of Mr. Assistant Attorney General Frierson for the respondent.

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. No. original. Ex parte in the matter of 123, 37 L. Ed. 1120; (4) Itow et al. v. United Walter PETERSON, as receiver, etc., petition- States, 233 U. S. 581, 34 Sup. Ct. 699, 58 L.

Jan. 12, 1920. Motion for leave to file Ed. 1102; Sugarman v. United States, 249 U. petition for writ of prohibition or mandamus S. 182, 184, 39 Sup. Ct. 191, 63 L. Ed. 550. granted, and a rule to show cause awarded returnable Monday, March 1, next.

(251 U. S. 556)

No. 608. HURNI PACKING COMPANY, (251 U. S. 566)

petitioner, v. MUTUAL LIFE INSURANCE No. 135. Joseph GORDON, plaintiff in error, I COMPANY OF NEW YORK. Jan. 12, 1920. v. The PEOPLE OF STATE OF ILLINOIS. For opinion below, see 260 Fed. 641. Mr. DeJan. 12, 1920. In error to the Supreme Court loss C. Shull, of Sious City, Iowa (Messrs. of the State of Illinois. For opinion below, see Charles M. Stilwill and Edwin J. Stason, both 283 Ill. 366, 119 N. E. 318. Mr. Louis Green- of Sioux City, Iowa, of counsel), for petitioner. berg, of Chicago, Ill., for plaintiff in error. Dis- Messrs. Frederick L. Allen, of New York City, missed with costs, pursuant to the tenth rule.

and Frederic D. McKenney, of Washington, D.

C. (Messrs. Ralph L. Read, of Des Moines, (251 U. S. 566)

Iowa, and Guy T. Struble, of Sioux City, Iowa, No. 235. The UNITED STATES of America, of counsel), for respondent. Petition for a writ as trustee, etc., plaintiff in error, v. SEUFERT of certiorari to the United States Circuit Court BROTHERS COMPANY et al. Jan. 12, 1920. of Appeals for the Eighth Circuit denied. In error to the United States Circuit Court of Appeals for the Ninth Circuit. For opinion

(251 U. S. 556) below, see 252 Fed. 51, 164 C. O. A. 163. Mr.

No. 619. The NORMA MINING COMPASolicitor General King, for the United States. NY, petitioner, v. Hugh MACKAY. Jan. 12, H. S. Wilson, of Portland, Or., for defendant in 1920. For opinion below, see 258 Fed. 914, 991. error. Dismissed on motion of Mr. Solicitor Messrs. George Lull and Maurice T. Dooling, General King for the plaintiff in error.

Jr., both of San Francisco, Cal., for petitioner.

Messrs. Frederick A. Williams, of Boston, (251 U. S. 541)

Mass., and Robinson & Robinson, of Denver, No. 239. W. W. HARRIS, plaintiff in error, Colo., for respondent. Petition for a writ of v. The STATE OF KANSAS. Jan. 12, 1920. certiorari to the United States Circuit Court In error to the Supreme Court of the State of I of Appeals for the Ninth Circuit denied.

er.

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