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Ohio Valley Water Company v Ben Avon Borough et al.

evidence exceeded its jurisdiction. The Supreme Court sustained this contention; and holding upon a careful review of the evidence and of the opinions below, that the Commission had been justified in its findings by "ample testimony" or "competent evidence" and that they were not unreasonable, reversed the decree of the Superior Court and reinstated the order of the Commission. (260 Pa., 289.) The case comes here on writ of error under Section 237 of the Judicial Code, as amended, the company claiming that its rights guaranteed by the Fourteenth Amendment have been violated: (1) because the Public Service Company Law, as construed by the Supreme Court of the State, denies the opportunity of a judicial review of the Commission's order; and (2) that the order, which was reinstated by the Supreme Court, confiscates its property.

First. The Commission's order, although entered in a proceeding commenced upon due notice, conducted according to judicial practice and participated in throughout by the company, was a legislative order; and, being such, the company was entitled to a judicial review. Prestis v Atlantic Coast Line, 211 U. S., 210, 228. The method of review invoked by the company under specific provisions of the statute was this: A stenographic report is made of all the evidence introduced before the Commission. On a record consisting of such evidence, the opinion and the orders, the case is appealed to the Superior Court, which is given power, if it finds that the order appealed from "is unreasonable or based upon incompetent evidence materially affecting the determination of the Commission or is otherwise not in conformity with law” either to reverse the order or to remand the record to the Commission with direction to consider the matter and make such order as shall be reasonable and in conformity with law. No additional evidence may be introduced in the Superior Court; but it may remand the case to the Commission with directions to hear newly discovered evidence and upon the record thus supplemented to enter such order as may be reasonable and in conformity with law. From such new order a like appeal lies to that Court. Act of July 26, 1913, No. 854, Sections 21-25, P. L., 1913, pp. 1427, 1428; Act of July 3, 1915, No. 345, P. L., 1915, p. 779. The Supreme Court construed this act as denying to the Superior Court the power to pass upon the weight of evidence; and the company contends that for this reason the review had does not satisfy the constitutional requirements of a judicial review.*

Whether the appeal to the Superior Court fails for the reason assigned or for some other reason, to satisfy the constitutional requirements of a judicial review we need not determine; because the statute left open to the company, besides this limited review, the right to resort in the state courts, as well as in the Federal court, to another and unrestricted remedy; the one commonly pursued when challenging the validity of a legislative order of this nature, namely, a suit in equity to enjoin its enforcement. See Louisville & Nashville Ry. v Garrett, 231 U. S., 298, 311; Wadley Southern Ry. v Georgia, 235 U. S., 651, 661. For Section 31 (P. L., 1913, p. 1429) provides:

" "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 and binding upon all parties affected thereby, unless set aside, annulled, or modified in an appeal or proceeding taken as provided in this Act."

Ohio Valley Water Company v Ben Avon Borough et al.

Resort to suit for injunction is made easy in rate controversies like the present by Section 41, P. 1432 in which it is provided that the penalties for failure to obey the Commissioner's orders imposed by Section 35, 39 and 59, pp. 1430, 1431, shall not apply to an order declaring a rate unreasonable, if the tariff of rates actually charged is filed with the Commission. The appeal provided for in Section 22-25 was under the original act also to the Court of Common Pleas, but was changed to the Superior Court by the Act of July 3, 1915.

No decisions of the Supreme Court of Pennsylvania construing Section 31 of this Act have been brought to our attention. The company contends, however, that the construction here suggested has been inferentially made untenable by dicta in St. Clair Boro v Tamaqua & Pottsville Elec. Ry. Co., 259 Pa., 462; Pittsburgh Rys. Co. v Pittsburgh, 260 Pa., 424; Klein-Logan Co. v Duquesne Light Co., 261 Pa., 526. But the language relied upon was in each instance used by the court in making the point, not that the sole method of review was by appeal as distinguished from a bill in equity, but that the function of the courts was to review only after the Commission had in the first instance passed upon the case.

Where a State offers a litigant the choice of two methods of judicial review, of which one is both appropriate and unrestricted, the mere fact that the other which the litigant elects is limited, does not amount to a denial of the constitution right to a judicial review. The alernative or additional remedy in the present case was in effect an appeal on the law applicable to facts found below. It is in substantial accord with the practice pursued in other appellate courts and approved in New York and Queens Gas Co. v McCall, 245 U. S., 345. It is true, however, that an additional or alternative remedy may deny the constitutional right to due process of law because of its nature or the course of the proceeding. See Iowa Central Railroad Company v Iowa, 160 U. S., 389. And it is the contention of the plaintiff that because the Supreme Court did not weight the evidence but reinstated the order of the Commission on account of there being substantial evidence to support it, the procedure was not a judicial review and denied it due process of law. The defendants, on the other hand, insist that the action of the Supreme Court, in reinstating the order, found not merely that there was substantial evidence, but, upon a full review, that there was ample evidence to support the findings, and that the order was reasonable. They contend that the course pursued by the Supreme Court in making such review was that customarily followed in Pennsylvania, both by appellate courts on appeals from chancellors and by trial courts on exceptions to reports of auditors, masters or referees, Barnes Estate, 221 Pa., 399; and they point out that the same method was pursued on appeal to the Supreme Court prior to the enactment of the Public Service Company Law, at a time when proceedings by consumers to secure reduction of water rates alleged to be unreasonably high were brought in the Court of Common Pleas, subject to appeal to the Supreme Court. Turtle Creek Borough v Penna. Water Co., 243 Pa., 401.

The contention of neither party is in my opinion wholly correct. Both overlook the nature of the question of law which was under review by the Supreme Court. It is true that there was no statutory limitation upon the scope of its review; but it does not follow either that the Supreme Court weighed the evidence and found that the preponderance supported the findings, or that because it failed to weigh the evidence there was either a denial of due process or even a mistake of law. The questions of law before the Supreme Court were, first, whether the Superior Court had

Ohio Valley Water Company v Ben Avon Borough et al.

jurisdiction to weigh the evidence; second, whether in rendering its decision it weighed the evidence; and third, whether the valuation of the plaintiff's property was so low that a rate based upon it would operate to deprive the plaintiff of property without due process of law, would confiscate its property. On each of these questions the Supreme Court found against the contentions of the plaintiff. It held that the Superior Court did not have revisory legislative powers, but only the power to review questions of law-in the present case, whether there was evidence on which the valuation adopted could reasonably have been found; and in so holding it acted upon the established principle applied in reviewing the findings of administrative boards, that "courts will not examine the facts further than to determine whether there was substantial evidence to sustain the order," Interstate Commerce Commission v Union Pacific R. R. Co., 222 U. S., 541, 547-548. It, therefore, reinstated the order of the Commission. But it did not do so as an appellate court reviewing on the weight of the evidence findings of fact made by the Superior Court. It did so solely because the only question before it was whether there was substantial evidence to support the finding of value; for if the valuation was legally arrived at, the order was confessedly reasonable. Interstate Commerce Commission v Union Pacific R. R. Co., supra; San Diego Land and Town Co. v Jasper, 189 U. S., 439, 441, 442. The presumption created by Section 23 P. L., p. 1427, by which an order of the Commission is made prima facie evidence of its reasonableness is in no sense a limitation upon the scope of the review. It is in effect the presumption which this court has declared to exist in rate cases, independently of statute, in favor of the conclusion of an experienced administrative body reached after a full hearing. Dwinell v Edwards, 244 U. S., 564, 569.

Second. As the company had the opportunity for a full judicial review through a suit in equity for an injunction, as it was not denied due process by disregard in the proceedings actually taken of the essentials of judicial process, and since it is clear that the findings of the Commission were supported by substantial evidence, the judgment of the Supreme Court of Pennsylvania must be affirmed, unless, as contended, the claim of confiscation compels this court to decide, upon the weight of the evidence, whether or not its property has been undervalued or unless some error in law is shown.

The case is here on writ of error to a State court. It is settled that in such cases we accept the facts as there found, not only in actions at law, Dower v Richards, 151 U. S., 658; but, also, where, as in chancery, the record contains all the evidence and it was open for consideration by and actually passed upon by the highest court of the State, Eagan v Hart, 165 U. S., 188; Waters-Pierce Oil Co. v Texas, 212 U. S., 86, 107. And this is true, although the existence of a Federal question depends upon the determination of the issue of fact, and although the finding of fact will determine whether or not there has been a taking of property in violation of the Fourteenth Amendment, Minneapolis and St. Louis Railroad Co. v Minnesota, 193 U. S., 53, 65. This court may, of course, upon writ of error to a State court "examine the entire record, including the evidence, to determine whether what purports to be a finding upon questions of fact is so involved with and dependent upon question of Federal law as to be really a decision of the latter," Kansas City Southern Co. v Albers Commission Co., 223 U. S., 573, 591-593; Cedar Rapids Gas Light Co. v Cedar Rapids, 223 U. S., 655, 658; Graham v Gill, 223 U. S., 643, 645. But in order that such examination may be required or be permissible,

Ohio Valley Water Company v Ben Avon Borough et al.

its purpose must not be to pass upon the relative weight of conflicting evidence, Oregon Railroad and Navigation Company v Fairchild, 224 U. S., 510, 528, and to substitute the judgment therein of this court for that of the lower court; but to ascertain whether a finding was unsupported iby evidence, or whether evidence was properly admitted or excluded, or whether in some other way a ruling was involved which is within the appellate jurisdiction of this court. Northern Pacific Railway v North Dakota, 236 U. S., 585, 593; Norfolk and Western Railway v West Virginia, 236 U. S., 605.

Here, it is clear, there was substantial evidence to support the findings of the commission; and no adequate reason is shown for declining to accept as conclusive the facts found by the State tribunals. See Portland Railway, Light & Power Company v Oregon Railroad Commission, 229 U. S., 397; Miedreich v Lauenstein, 232 U. S., 236. The rates are predicated on the company's earnings seven per cent. net on the value of its property used and useful in the service, after deducting from the income all expenses and charges for depreciation. It is conceded that seven per cent. is a fair return upon the inyestment and it is not contended that any erroneous rule has been applied in ascertaining the expenses of operation or the depreciation charges. The claim that the rates are confiscatory rested wholly on the contention that the property was undervalued; and on that question the contention is that the court failed to give due weight to the evidence adduced by the company and that the processes by which the Commission arrived at the value it fixed differed from that of pursued by courts and administrative bodies. To this the Supreme Court of Pennsylvania said: "The ascertainnient of the fair value of the property, for rate making purposes, is not a matter of formulas, but it is a matter which calls for the exercise of a sound and reasonable judgment upon a proper consideration of all relevant facts." The objections to the valuation made by the company raise no question of law but concern pure matters of fact; and the finding of the Commission, affirmed by the highest court of the State, is conclusive upon this court. The case at bar is wholly unlike Great Northern Railway v Minnesota, 238 U. S., 340; and Union Pacific Railroad Company v Missouri, 248 U. S., 67, where this court reversed the judgment as matter of law upon the facts found by the Commission.

In my opinion the judgment of the Supreme Court of Pennsylvania should be affirmed.

Mr. Justice Holmes and Mr. Justice Clarke concur in this dissent.

*In Napa Valley Electric Co. V Railway Commissioners, 251 U. S., 366. this court had before it in Sec. 67 of the Public Utilities Act of California a procedure substantially similar to that provided by Sec. 21-25 of the Pennsylvania Act set forth above. The court strongly intimated, if it did not decide, that under the provisions of the act the mere denial of a petition to the Supreme Court of the State for a writ of certiorari amounted to an adequate judicial determination of the petitioner's rights.

Bingham v Negley Avenue Garage Co. Pleading and Practice-Plaintiff's Statement -Rule to Strike Off-Sur

plusage--Specific Objections.

A rule to strike off plaintiff's statements from the record in an action in trespass for alleged injuries to an automobile held by defendant as bailee was discharged in that while the statement contained more than was required, yet a cause of action was made out, and while the nature of injuries as well as the measure of damages were in general and indefinite language, no specific objections had been made to these.

Rule to Strike Statement from Record. C. P. Allegheny County.

No. 1924 April Term, 1920.

Williams & Edwards, for plaintiff.
John E. McCalmont, for defendant.

Before Drew and Ford, JJ. FORD, J., April 17, 1920.—This is a motion ex parte defendant to strike from the record a statement of claim filed by the plaintiff for the reasons that:

(a) The cause of action in trespass is founded on an alleged breach of contract;

(b) It does not contain a concise statement of the material facts on which plaintiff relies for his claim.

The action is for damages occasioned by the negligence of defendant while in possession of an automobile held as bailee. For the purpose of showing the alleged bailment, plaintiff averred that the automobile was placed with the defendant company upon an oral agreement, between plaintiff and defendant, whereby defendant agreed to make sale, account to plaintiff for the proceeds and return the automobile if sale was not effected. There is no claim for damages arising from the breach of the contract, the contention being that the defendant was negligent in the use and the care of the car. The negligence alleged is in the alternative, being that the defendant, in violation of its duty as bailee, hired the car for its own purpose and profit and was guilty of negligence in respect to the car whereby it was injured and damaged.

The statement is somewhat elaborate and may contain more than a cause of action expressed in brief language, yet it contains all of the legal requiremnts to show a good cause of action. It might be noted that the alleged damage to the machine when received from defendant, is expressed in general terms and is indefinite. The measure of damages is subject to the same objection but no specific objection has been taken to the statement in either of these respects; we are of opinion that the motion to strike from the record should be refused.

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