United States ex rel. Yonick et al. v Briggs.

courts. Those decisions of the highest courts of the State are binding upon the Federal tribunals. The Court there held that the right of trial by jury is not invaded by the Act in question and that there is no trial for any crime; that the very purpose of the Act is to prevent a trial, though, if the welfare of the public requires that the minor shall be tried, power is not taken away from the Quarter Sessions by the express provisions of Section 11. The Act was well justified by the Supreme Court, when it said, "There is no probability, in the proper administration of the law, of the child's liberty being unduly invaded. Every statute which is designed to give protection, care and training to children, as a needed substitute for parental authority and performance of parental duty, is but a recognition of the duty of the State, as the legitimate guardian and protector of children where other guardianship fails. No constitutional right is violated, but one of the most important duties which organized society owes to its helpless members, is performed just in the measure that the law is framed with wisdom and is carefully administered." The constitutionality of the Act being thus upheld, we turn to the facts of the case to determine if the relator's constitutional rights have been invaded. The record of the proceedings of the Court under which the child is restrained, was offered in evidence. From this record we find that on September 17, 1913, the said George Yonick was arrested on an Information charging him with larceny from a railroad car. It appears that after hearing by the Juvenile Court, he was returned to his home on probation. That in 1916 on petition of the Probation Officer, setting forth that relator and his brothers were dependent and neglected, the children were again brought before the Juvenile Court, and after hearing were committed to the Allegheny County Home Finding Department. About two months later, on further consideration by the Court, George Yonick and two of the other children were released from the Home Finding Department and returned to their mother, under the supervision of the Probation Officer. On May 23, 1918. George Yonick was again before the Court charged as a delinquent, and upon hearing was committed to the Thorn Hill School, where he is still detained. Afterwards, on the 15th of August, 1919, a petition was presented on behalf of the said George Yonick, setting forth certain facts, with the prayer that a hearing be given, agreeably to the Act of Assembly, to determine why the order committing the said George Yonick should not be revoked and the minor returned to his home. It appears that a hearing was had upon said petition, but as yet the Court has rendered no decision thereon.

From this record, we see that the minor is in custody by virtue of the order of a court of competent jurisdiction. He was never tried upon the charge of larceny, for which he was originally arrested. The subsequent steps taken before the Juvenile Court were to save him from this criminal trial. His present commitment is on the ground of delinquency, which in the Act means any child, including incorrigible children who may be charged with the violation of any law of the Commonwealth or the ordinance of any city, borough or township. In the case of Frank v Mangum, 237 U. S., 309, the Supreme Court discusses very fully and with great clearness, the question of deprivation of liberty without due process of law, the meaning of the constitutional provision and the proper mode of procedure, where the citizen claims his constitutional rights have been invaded. That case holds that under the terms of Section 753 of the Revised Statutes, in order to entitle the applicant to relief under the writ of habeas corpus, it must appear that he is held in custody in violation of the Constitution of the United States; that he cannot have relief on habeas corpus if he is held in custody by reason of conviction upon a criminal charge before a court having jurisdic

United States ex rel. Yonick et al. v Briggs.

tion over the subject-matter of the offense, the place where it was committed and the person of the prisoner; that, if the proceedings in the courts of a state are based on a law not repugnant to the Federal Constitution, and conducted according to the settled course of procedure under the law of the state, so long as it includes notice and a hearing, or an opportunity to be heard, before a court of competent jurisdiction, according to established modes of procedure, this is "due process of law" in the constitutional sense; and finally, that habeas corpus will lie only where the judgment under which the party is detained is shown to be absolutely void for want of jurisdiction in the court, either because such jurisdiction was absent in the beginning, or was lost in the course of the proceedings. Here undoubtedly, the Court had jurisdiction for the humane purpose of saving the child from trial and perhaps conviction on a criminal charge, which otherwise might have resulted in imprisonment as a convict. There is no evidence that he or any one for him, demanded at any time a trial by jury. The Act in question, and the proceedings under it when regular, are but the exercise by the state of its supreme power over the welfare of its children, acting as parens patriae, when the natural parents have shown themselves unwilling or unable to properly care for them. The Court having original jurisdiction of the child, I do not find that such jurisdiction was lost during the course of the proceedings. Under the Juvenile Court Acts, a party who feels aggrieved by the judgment of the Court may have an appeal to the Superior Court of Pennsylvania. Under the liberal procedure in habeas corpus, a person in custody pursuant to the judgment of the state court, may have judicial inquiry in the Federal Courts into the very truth and substance of the causes of his detention, and if necessary, to look beyond the record sufficiently to test the jurisdiction of the court under whose order he is restrained. In other words, the record can be attacked if in any way it fails to set forth the truth. Here no such testimony was offered, and hence the correctness of the record must be assumed.

Being unable to find that the restraint of the relator is in violation of his rights under the Constitution of the United States, the relator must be remanded, and it is accordingly so ordered.

Ohio Valley Water Company v Ben Avon Borough et al.

Public Service Company Law Appeals Confiscation Judicial Review of Public Service Commission's Order-Federal Constitutional Law.

The Pennsylvania Public Service Commission entered an order fixing the entire annual revenue of a water company. The company appealed to the Superior Court of Pennsylvania alleging that the Commission's order was confiscatory, and, therefore, in violation of the Fourteenth Amendment to the Constitution of the United States. The Superior Court reversed the order on the ground that it was confiscatory. The Commission and the other appellees in the Superior Court then appealed to the Supreme Court of Pennsylvania and that Court reversed the judgment of the Superior Court and reinstated the order of the Commission on the ground that under the Pennsylvania Public Service Company Law the courts could not decide such a case upon their own views as to the weight of the evidence but must uphold the Commission's findings of fact, if those findings are supported by substantial evidence, and that in the case at bar the Commission's findings were supported by substantial evidence. Upon a writ of error allowed by the Supreme Court of the United States, on the application of the Water Company, Held:

(1) That the order of the Commission was legislative in character and that the water company was entitled to a judicial review of that order; (2)

That where an order of a Public Service Commission prescribes a complete schedule of maximum future rates and is alleged to be confiscatory, the State must provide a fair opportunity for submitting the issue of confiscation to a judicial tribunal for determination upon its own independent judgment as to both law and facts; otherwise the order is void becuase in conflict with the due process clause of the Fourteenth Amendment to the Constitution of the United States;

(3) That the Supreme Court of Pennsylvania interpreted the Pennsylvania Public Service Company Law as withholding from the courts power to determine the question of confiscation according to their own independent judgment and that, therefore, the plaintiff in error has not succeeded in obtaining the review for which the Fourteenth Amendment requires the State to provide;

(4) That, unless an opportunity for such a judicial review is now available and can be definitely indicated by the Pennsylvania Supreme Court, the order of the Public Service Commission is invalid;

(5) That the judgment of the Supreme Court of Pennsylvania must be reversed and the cause remanded there for further action not inconsistent with the opinion of the Supreme Court of the United States.

In Error to the Supreme Court of the State of Pennsylvania. Supreme Court of the United States. No. 128 October Term, 1919.

In the

George B. Gordon, William Watson Smith and John G. Buchanan, attorneys for plaintiff in error.

Berne H. Evans, attorney for Pennsylvania Public Service Commission, defendant in error.

David L. Starr, Leonard K. Guiler and Albert G. Liddell, attorneys for remaining defendants in error.

MCREYNOLDS, J., June 1, 1920.-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 seven per centum thereon over and above operating expenses and depreciation.

Claiming the Commission's valuation was much too low and that the order would 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 seven per centum of such sum.

Ohio Valley Water Company v Ben Avon Borough et al.

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 rate making 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 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.

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; Lake Erie & Western R. R. Co. v State Public Utility Commission, 249 U. S., 422, 424. In all such cases, if the owner claims confiscation of his property will result, the State must provide a fair opportunity for submitting that issue to a judicial tribunal for 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; Wadley Southern Ry. Co. v Georgia, 235 U. S., 651, 660, 661; Missouri v Chicago, Burlington and Quincy R. R., 241 U. S., 533, 538; Oklahoma Operating Co. v Love (March 22, 1920),-U. S.—.

Here the insistence is that the Public Service Company Law as construed and applied by the Supreme Court has deprived plantiff 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.

Article 6, Public Service Company Law of Pennsylvania—

"Section 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

Ohio Valley Water Company v Ben Avon Borough et al.

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 & Pottsville Electric Ry. Co., 259 Pa., 462; Pittsburgh Railways Co. v Pittsburgh, 260 Pa., 424— but they do not definitely decide the point.

Taking into consideration the whole Act, statements by the State Supreme Court concerning the general plan of regulation, and admitted local practice, we are unable to say that Section 31 offered an opportunity to test the order so clear and definite that plaintiff in error was obliged to proceed thereunder or suffer loss of rights guaranteed by the Federal Constitution. On the contrary, after specifying that within thirty days an appeal may be taken to the Superior Court (Sec. 17) the Act provides (Sec. 22): "At the hearing of the appeal the said court shall, upon the record certified to it by the commission, determine whether or not the order appealed from is reasonable and in conformity with law." But for the opinion of the Supreme Court in the present case, this would seem to empower the Superior Court judicially to hear and determine all objections to an order on appeal and to make its jurisdiction in respect thereto exclusive. Of this the latter court apparently entertained no doubt; and certainly counsel did not fatally err by adopting that view, whatever meaning finally may be attributed to Section 31.

Without doubt the duties of the courts upon appeals under the Act are judicial in character-not legislative, as in Prentis v Atlantic Coast Line, supra. This is not disputed; but their jurisdiction, as ruled by the Supreme Court, stopped short of what must be plainly entrusted to some court in order that there may be due process of law.

Plaintiff in error has not had proper opportunity for an adequate judicial hearing as to confiscation; and unless such an opportunity is now available, and can be definitely indicated by the court below in the exercise of its power finally to construe laws of the States (including of course Section 31), the challenged order is invalid.

The judgment of the Supreme Court of Pennsylvania must be reversed and the cause remanded there with instructions to take further action not inconsistent with this opinion.

Reversed.

BRANDEIS, J., dissenting.-The Public Service Commission of Pennsylvania, acting upon complaint of Ben Avon Borough and others, found, after due notice and hearing, that increased rates adopted by the Ohio Valley Water Company were unreasonable; and it prescribed a schedule of lower rates which it estimated would yield seven per cent. net upon the value of the property used and useful in the service. The company appealed to the Superior Court, contending that the property had been undervalued and that the rates were, therefore, confiscatory in violation of the Fourteenth Amendment. That court, passing upon the weight of the evidence introduced before the Commission, found that larger amounts should have been allowed for several items which entered into the valuation, reversed the order on that ground, and directed the Commission to reform its valuation accordingly and upon such revised valuation to fix a schedule of rates which would yield the net return which it had found to be fair. From the decision of the Superior Court the Commission appealed to the Supreme Court of the State, contending that the Superior Court had in passing upon the weight of the