*1 than in Kalb was the collision v. here important more (In Feuerstein, supra. case, as in other this situations Devlin, Bankruptcy Act, it is the 172) 180 F. re control the administration which must probate law, local supreme. Sec. bankruptcy estate. result power. exercise of is a valid give must insofar as is incon way (9) Order 50 General rules For those are intended this result. sistent Lea, (West Co. v. 174 U. S. merely execute the act" “to additions to substantive not to “authorize 590, 599), Banking Co., County Centre Meek v. provisions.” U. S. join in and Me. Muephy Black Justice
Me. Justice dissent. OF COMMISSION OHIO PUBLIC UTILITIES et al. FUEL GAS CO. UNITED al. et 11, 1943. January Argued December 1942. Decided No. 87. *2 Sater, with whom Mr. Her- Kenneth L. Thomas J. Mr. was on the Ohio, brief, Attorney General bert, appellants. Bitz, Eagle- with whom Mr. Freeman T. A.
Mr. Harold appellees. brief, for on the son was opinion delivered the Frankfurter Mr. Justice Court. from a decree of District Court appeal is an
This enjoining the enforce- of Ohio the Southern District (here- Company Fuel Gas against appellee, ment made the Public Utilities of orders called United), after Supp. Ohio, F. The Portsmouth Gas dispute. The facts are natural utility, gas at retail sells public Company, entire It Portsmouth, purchases Ohio. people Virginia corporation. gas United, from a West supply of through a continuous conveyed pipelines Virginia in West and Ken- points production flow there delivered to the Portsmouth tucky Ohio, into City February 24, 1932, the of Ports- On Company. given 614-44 of the authority § under the mouth, the rates to be Code, established Ohio General natural distributed Portsmouth consumers for Company. This ordinance did not the Portsmouth Gas *3 charges by gas fix made the to the United for purport Claiming Company. sold to the Portsmouth Gas that by city the fixed the were unreasonable unjust, and challenged Company the Portsmouth Gas the ordinance before the Public Commission The Utilities of Ohio. found complaint justified, Commission that was and just that reasonable and be substituted for should prescribed by those the ordinance. But it also found that it could not determine such rates the absence of proof charges that which United exacted from the Ports- Company just mouth Gas were and reasonable. gas by Commission ruled that the sale of to the United to Company Portsmouth Gas for resale consumers public utility Portsmouth was a service within the mean- ing Code, §of 614-2 of the Ohio General and that the rates charged subject jurisdic- to be were for such service to its April tion. on the Accordingly, 18, 1935, “all prepare present pertinent ordered that United and tending prove a testimony relevant and exhibits reason- charged by it just rate to be Portsmouth able and furnishing Company gas for the of natural for dis- City Portsmouth, tribution within the Ohio.” filed thereupon petition rehearing United for with the petition gas by Commission. asserted sold to the Company Portsmouth Gas interstate that the two commerce, companies wholly were independ- another, ent of one the Commission therefore power went of the state in beyond asserting juris- be for charged gas diction to the rates to sold United to the Gas Company. Portsmouth United recognized, authority however, Commission to compel produce possession evidence relevant ato de- just termination of and reasonable charged rates to be Company the Portsmouth Gas sold to its custom- testimony United, proffer ers. This which was not Commission, is relevant accepted by disposi- “It controversy: question tion of this does not [United] right to call upon petitioner of said Commission may be in its possession for such evidence facts may tend to show what would be a reason- which show or be to the consumers able rate to Portsmouth, and it offers to to the Com- City of furnish may desired, and evidence as or to mission such facts agents of the Public Com- any officers or Utilities permit such facts and evidence as of Ohio to ascertain mission and books for the purpose from its records may be desired right or protests but denies and aforesaid, shall petitioner fix the rates at said Commission *4 into the of Ohio and transports State sell Company.” Gas the Portsmouth delivers to petition. denied this 1935, the Commission May 29, On assertion of previous reaffirmed its expressly Its order charged of to be for the sale fix the rates jurisdiction Company.1 Gas to the Portsmouth gas by United 1 furnishing Commission of natural finds that further “The Company Company to the Portsmouth Gas Fuel by the United of the two orders to restrain enforcement of
This suit July original filed bill, followed. its orders were 3,1935, alleged that the Commission’s regulate interstate com- attempt an unconstitutional with the would entail an merce; compliance that orders than thousand dollars expenditure of more one hundred make in deter- appraisals required order to the usual would mining base; a rate that disobedience to the orders subject agents United and to fines of a thousand dollars day. allegations a These were denied the Commission. September 23, 1935, But on that parties stipulated plaintiff “it will cost the a substantial sum of money, dollars, comply excess of three thousand with the Com- mission’s order.” bill pending was still at time of the enactment 21, 1938,
of the Natural Gas Act of June 821, Stat. 717, §C. and the relevance that 15 U. S. of statute to the present controversy duly was set forth an amended bill filed March 1939. The suit 8, did not come to issue years than more two thereafter. The death of one of the District necessitating reargu the members Court, ment may and reconsideration of the case, explain, at least why in part, public importance a case of such should have proceeded at such pace. a leaden-footed It was not until City Portsmouth, consumers within the Ohio, public for resale to is a meaning utility service within 614r-2, Section General Code of charged Ohio; subject jurisdic- the rates to be therefor are jurisdiction Commission; right tion of this that such includes regulate price service, the rate or to be such necessary exercise of such for a determination things herein before matters and at issue this Commission.” July day 3,1935, temporary The bill and on was filed on the same restraining Judge Hough. was issued District The case was order September 1935, judges 23, submitted to a District of three on 19, Hough 1935, decided, Judge died. but November before it was on complaint 20, 1936, filed An amended on November and a second complaint 1939, on amended on March to which answer was made 8, April complaint April A third amended filed on *5 was under review the decree now 1942, that January 16, regardless of what that, held The District entered. the in the absence of been might have the situation Commis- the Ohio deprived that statute Act, Natural Gas gas the rates to regulate to sion And interstate commerce. so and sold transported orders the Commission’s enjoined the enforcement of court against United. of this case the issues Commission contends Act because the Natural Gas scope
lie outside the establishment with was concerned Gas to Portsmouth gas by United for the sale of rates Act, the federal date of to the effective Company prior Feb- retroactive and, particularly, more prescribed city of Portsmouth ruary 24, when 1932, Portsmouth by the rates for to consumers sold rise to gave Company in the ordinance which if contention, This the Commission. proceedings before the Com- whether correct, would to consider require us the Commis- merce invalidated force, of its own Clause, assertion sion’s over shipped by United into Ohio. April
was 24, 1941, by followed on a motion to dismiss which was July 8, July denied on application 1941. On an for leave file made; application granted August an answer was was on 4, 1941, day. having and an answer was filed the same cause finally submitted, been opinion the District Court filed an on October 2,1941, finding plaintiff injunctive was And entitled to relief. January 16,1942, on the decree now under review entered. Report
The 1942 Annual of the Director of Administrative (p. Office of the 7) United States Courts discloses that “The median elapsed filing disposition time which of civil cases terminated during year district courts which had been tried to court jury, excluding or condemnation, corpus, land habeas and forfeiture proceedings, was months; 10.7 and from issue to trial it was 6.1 compares months. . . . periods This of 10.2 months and 5.3 months, respectively, 1941.”
But we reject must the contention of the Commission. *6 It rests upon the assumption that under the Ohio law the state Commission can fix retroactively the rates of United. For it must be borne in mind that the ultimate issue this suit is the assertion by the Ohio Commission in 1935 power to fix appellee’s rates; that the Commission has yet not exercised power thus asserted; that it has not made the inquiry findings which must precede the establishment of new rates; that United has posted any not bond to might secure refunds it be ordered make; Commission’s to United’s rates was by denied the District Court in its decree of January 16, 1942; that, far past so as in the are concerned, power of the (apart Ohio Commission imposed limitations by law, federal whether constitutional or statutory) dependent upon the au- thority possessed by it under Ohio law. To sustain the Commission on this phase of the case we would have to find that it was law of Ohio that the Commission had power to fix upon gas sold United to the Ports- mouth Company which would be retroactive to Feb- ruary city when the prescribed of Portsmouth Company the rates sold Portsmouth Gas to its customers.
Unfortunately finding we are not aided of the question lower court on this of state law. Since the composed District judges, three Ohio have they may perhaps point taken Ohio law on this so granted require much for as not to statement. Under ordinary prefer circumstances we would to leave to others formulating the task of local law. But this case has already long been courts, too the federal and we do think it comports with the interest remit the public controversy explicit findings by the District Court as to the of the Ohio to fix rates retro from Rail actively. quite different situation here Co., Where U. Pullman S. road Comm’n might ter of local law question of a doubtful disposition make it controversy thus unneces minate the entire con question, substantial constitutional sary to decide a rule But of abstention. equity justify a siderations ruling on could law no state court local where, here, as remain, and necessarily questions settle federal litigation already has been where, here, as long time, considerations inordinately federal courts an to an equity litigation brought that the end require quickly as possible. under proceeding before the Commission arose state 614-44 et seg. (Page, 1926), Code § General *7 dealing with to appeals municipal the Commission from establishing ordinances rates local utili by to ties. such appeal taken, Whenever an is it was taken by here the Company, Portsmouth the Gas Commission required is to hold a hearing. If, § 614r-44. after such hearing, the Commission finds that the fixed by rate the unjust ordinance is or unreasonable, must determine just the and reasonable rate be charged “during to the period so fixed . ordinance . . and order the same sub for stituted the . rate . It § is [ordinance] 6LL-46. clear that under this section the statute the Commission just can establish in reasonable rates lieu of those fixed by the ordinance, and can its order make effective retro- actively by ordering in charges refunds of excess of the substituted rates. In re Columbia Gas & Co., Fuel Rep. Ohio P. U. C. 22; 1941 id. Wheeling re Co., Electric In re 69; East Ohio Gas Co., 1939 id. 15. The Commis- sion undoubtedly has power, therefore, just to establish a and reasonable rate, retroactive February 24, gas sold by the Portsmouth Gas Company people of that community.
But whether Commission has similar power with respect to rates for sold United to the Ports- controlling inquiry Company
mouth Gas is —and entirely separate question. here —is an Section 614-46 because the rates to be established would inapplicable is not be in lieu of rates fixed ordinance. Commis- authority inquire sion’s into the reasonableness charged by sold to the Portsmouth rates 614-21 614-23, is to be found Company §§ “Upon complaint writing, as follows: provide firm against any public utility, by any or person, corpo- complaint or initiative or of the com- ration, any unjust respect mission rate ... unjustly unjustly or unreasonable, prefer- discriminatory, law, ential or violation of . . . the commission shall notify public utility” hearing. If, and hold a after such hearing, charge the Commission finds that the rate or unjust, or otherwise it must “fix unreasonable, unlawful, just and determine and reasonable fare, rate, charge, service to be thereafter toll, charged, rental or de- rendered, manded, performance exacted or collected for the or ren- dition order the there- service, same substituted added). The (italics § for.” 614-23 statute terms thus gives rates prescribe pros- such only. hearing, pectively If, after notice and Commis- just unlawful, finds to be it can then sion charged. and reasonable rates “to be thereafter” preceded by establishment of new must be a find- *8 ing unjust unreasonable, that the old rates and are they the new are of the date fixed. prospective rates as are concluding There is no basis the statute for that be Commission’s orders can retroactive to the date when inquiry into the rates Commission’s on begun; contrary, explicit language of the precludes statute such a construction. that the Commission has con- show reports annual
Its man- plain to be the what would seem sistently followed In Amherst Water Works g., e. re See, statute. date of the
465 P. & Co., Rep. 88; Ohio U. C. re Cincinnati Gas Electric id. In re Union & Electric Co., 14; Co., Gas may 1936 id. 67. doubts there have been about Whatever appear the matter to have been removed the decision Valley in Great Tax Supreme of the Court of Ohio Miami payers Commission, Assn. Public Utilities 131 Ohio St. ruling N. 2d affirmed a the Com E. a refund in power mission that “it was without to make pro virtue of the proceeding instituted under 614^23, visions of General Code.” Ohio St. Section pot for therefore, It that counsel surprising, Com the Commission did not contend before us retro establish mission under Ohio law to has charged by United just actively and reasonable rates to ex Our Company. sold to the Gas Portsmouth us convinces amination of the Ohio materials relevant authority. given such the Commission has not been The Commission in this case not yet has done more than assert its over United’s It yet rates. has not hearing held a upon reasonableness of present United’s finding it has made rates; no whether these are un- lawful whether new should be it substituted; inquiry has entered an to determine what rates just would be and reasonable. As of the date of the en- Act, therefore, actment of the Natural the proceeding far concerned, before as United was so Commission, embryonic stage. was still an And we can find no pro- vision of Ohio law which would authorize the Commission fixing to enter orders United’s rates retroactive to prior 21, 1938, date to June when the federal Act became treated here, law. Commission’s orders must be therefore, determining whether are purposes they in conflict with law, statutory, federal constitutional or if they had been made after the enactment of on disposed Natural Gas Act. The case cannot now be governed the basis that would have had here come *9 had powers into the the Commission inquire To year prior to the enactment any or other year, that an abstract in would be to ascertain Act Natural Gas upon called question law. The we are question the District only is whether question, and it decide, That the decree under review. entered properly 1942, after enact- January 16, entered on was decree in filing United, and after Act, Natural Gas ment of the for relief its claim complaint, bill of based amended an that an in appeal It familiar doctrine that Act. time of the ulti- as of the up inquiry equity opens an suit of a the basis appeal To decide this on decision. mate to the only prior to exist not that ceased legal situation finally also before issue appeal but taking of gratui- be make a Court, would in the District joined now case that is here judgment. It is the advisory tous decided on basis decided, and it must be must be v. now. Vandenbark that exist Cf. circumstances there cases Co., 542-43, and U. S. Owens-Illinois cited. agree we in the future
And as to rates effective governs. the Natural Gas Act of District Court that constitutionality scope Act, Congress Power Comm’n in Federal last Term which we canvassed Public Co. Co., 575, and Illinois Gas v. Pipeline 315 U. S. Co., regulatory 498, preempted Service 314 U. S. gas of natural transportation sale powers over the declaring that Section after commerce. interstate transpor relating regulation “Federal matters gas and the thereof interstate tation of natural sale interest,” necessary in the foreign public commerce is transportation of natural applicable the Act to “the makes commerce, in interstate com interstate sale con public merce of natural for resale for ultimate industrial, domestic, commercial, or sumption . natural-gas engaged such companies other and to use, *10 in connection transportation, charges or sale.” Rates and gas in transportation with the sale or of interstate com- “just (a). merce to required § are and reasonable.” Companies subject must, (c), § to Act under file with the Federal Power Commission schedules of rates and changes and in charges, no such schedules can be made without public. notice to the Commission and (d). § Acting upon either its complaint own motion or state or municipality, regulatory body or a state or distrib- uting company, inquire Commission can into the legality of charges companies subject rates and to its jurisdiction, and can just determine the and reasonable charges rates and thereafter to be (a). observed. 5§ It is as the clear, legislative history of the Act amply demonstrates, Congress meant to create a comprehen- regulation sive scheme of which would be complementary operation to that states, without confu- sion of functions. The Federal Power Commission would jurisdiction exercise over matters in interstate and foreign to the extent defined in commerce, the Act, and local mat ters would be left to state regulatory Congress bodies. contemplated a harmonious, system dual of regulation of gas industry the natural and state regulatory —federal operating bodies side side, each active in its own sphere. See H. Rep. No. 74th Cong., 2d Sess., pp. 1-3; H. Rep. No. 75th 1st Cong., Sess., pp. 1-4; Rep. Sen. 1162, 75th Cong., No. 1st Sess. undisputed facts this
Upon the record, United is jurisdiction subject the exclusive plainly to of the Federal respect Power Commission charges rates and natural transported from Virginia West indeed, Kentucky And, Ohio. compliance with Act, United has submitted itself to the agency of the federal and filed schedules of its rates and charges. changes in No such schedules can be made with- out notice to the Power Commission. That Commission, into the lawfulness of such inquire can motion, own
on its requires, rates found to be interest so public if the rates; indispu- It is may be substituted. reasonable just today if Ohio Commission made table, therefore, suit, it would be intrud- complained of orders regulatory body. the federal ing in a domain reserved gas transported for natural fix rates solely has been entrusted commerce interstate sold follow, It does not Commission. the Federal Power in the appro- Act a state course, commission, that the bars pro- jurisdiction, compelling of its priate exercise *11 it. proceeding relevant to the before duction of evidence beyond purpose. this limited But us went the orders before jurisdiction the a which state They undertook to assert regarding In conclusion body possess. not our does by the of the Public law, only we hold assertion in be Utilities Commission of Ohio construed must light authority And, under the Ohio statutes. of its be thus the order cannot reconciled with construed, Congress enacting of in Act of action Natural Gas jurisdic- are an assertion of the orders not Because fix the prior tion to rates of to the enactment of to unnecessary whether, the federal decide in Act, it statute, the absence of federal the state could success- fully attempt fix the an interstate natural company transported sold one state to another.
Since these are they orders invalid insofar as impinge upon Congress an authority solely which has now vested the Federal Commission, Power the decree below must it fairly stand unless we can conclude that an abuse was grant by way of discretion for the District relief injunction. It is this late date perhaps unnecessary at courts repeat the admonition the federal should wary proceedings be of state adminis- interrupting in- extraordinary writ of trative tribunals use of junction. But this, too, equity is a rule of and not to be applied disregard of fact. blind And what are the commanding present First, circumstances case? important, and most the orders of the state Commission are on their plainly beyond face invalid. No inquiry orders and the undisputed themselves facts which under- lie them necessary they order to discover that are If, conflict with the federal Act. com- therefore, United it plies orders, put expenditures with these will ascertaining rate-fixing incident to the base for purposes— ultimately be expenses may which borne the consum- ing public Congress, by conferring which exclusive agency, the federal neces- regulatory If sarily comply intended to avoid. United does not incurring it risk of orders, heavy runs the fines in provoking needless, at the wasteful penalties or, least, litigation. event, either enforcement of the Commis- money not injury sion’s orders would work assessable but to the interest damages, only appellee public by enacting Congress safeguard deemed wise to cannot circumstances, Act. In these we Natural an improper the decree of the District Court as set aside jurisdiction. Petroleum Co. equitable exercise Commission, very U. Public Service S. *12 regulation of intrastate different case. There federal state conflict between involved, alone was no sought equity issue, appeal authorities was adminis- exhaustion anticipate appropriate process. trative the court jurisdiction of objections
Two minor
May
Act of
long. The Johnson
need not detain us
below
inapplicable
41 (1),
28 U. S. C.
§
Stat.
“inter-
of the state Commission
here because
orders
they
to the extent
commerce”
fere with interstate
in interstate
regulate matters
attempt
an
constitute
exclusively with the
lodged
Congress
which
has
commerce
Federal Power Commission. And, unlike
appellant
Slattery,
Natural Gas Co.
As we construe the Court, decree of the District it does prevent the Public Utilities Commission of Ohio requiring produce United to possession data its may be relevant a just to determination of the and reason- able to be the Portsmouth Gas Com- pany sold to the city. consumers of that As has already noted, rehearing been United, petition before the Commission, produce offered to such evidence. And apparently throughout this litigation entire it has held ready itself to do so. The orders of the Commission were only they subjected assailed insofar as United to the jurisdiction of the state Commission with respect to rates for gas imported by it into Ohio. We therefore read the decree of the injunction District Court as an against enforcement of the Ohio only Commission’s orders extent assumption by the Commission of rate- making power over United has been resisted. read, So the decree is
Affirmed. Black Mu. Justice dissenting, whom Mu. Justice Douglas Murphy and Mr. Justice concur.
As a
decision, delays
obtaining
result of this
incident to
injunction
wholly
diligent
federal
have made
futile the
efforts of the
of Ohio to
reasonable
rates for
State
*13
people
Portsmouth,
agree
cannot
Ohio.1 I
suggestion
here that
cause
implied
any
this results
into
interposition by
other than the unwarranted
courts
making.
rate
Indianapolis
business of
Cf. McCart v.
Co.,
eight years
Water
302 U.
435. Here
S.
after
the Ohio Public Utilities Commission made United party
charged” by
defendant
order to
“to be
it,
is told that United may keep
sum
no matter
collected,
unjust
charged may
how
or unreasonable the rates
have
been; and Ohio’s
denied
right
recoup
citizens are
possible losses because the Commission “has
not made
inquiry
findings
and the
which must precede the establish-
ment
new rates.”
reason,
only
There is one
and
one
reason, why the Commission has not
inquiry
made such
findings
any step
and
could be taken toward
—before
establishing a final rate
order,
even
single
before a
injunction
witness could be
this federal
heard,
stopped
the state Commission
its tracks. Had the Commission
proceeded
inquiry
to make
findings
the face of the
injunction it would have risked the possibility that
agents,
members,
attorneys
could have been seized
imprisoned
and fined or
for contempt of court.
parte
Ex
If
Young,
472 Line, table fitness or Prentis Atlantic Coast propriety,” v. 229, tying 211 the Commission’s U. S. from hands 210, barring making it the final order here held to from proceedings these at the threshold and stop vital. To years relief for the possible during thus bar all along its interminable litigation crawled course seems to justifiable me than the action by far less condemned this Public Commission, Petroleum Co. v. Service 304 S. 209. U. halting the Ohio rate-making proc-
The federal action ground justified wholly on the ess since regulation in 1938, bars Act, passed by Natural Gas Ohio while 1938, rates since Ohio law is said to United’s regulation to 1938 because any prior bar no final order yet Public Utilities has been made Commission. hold categorically The Court refuses to that Ohio law order, asserting nullifies instead that Ohio law re- quires order interpret us to the Commission’s as not at- tempting making to lead to for the period rate 1935-1938. will prove surprise This doubtless some to the Commis- sion, question which made the order in and which argued has here below that both the Natural Gas Act subsequent is irrelevant because it effect took period in which now the Commission is interested. Whether Com- the Court considers that Ohio law bars the making order, mission from a valid or whether uses knowledge of Ohio law tell the Commission what the immaterial —in either case attempted, has press we the Ohioans. conception our of Ohio law on But de- question squarely the local law been has never cided That United can suc- question Ohio. is whether delays cessfully, by taking advantage full judicial City of Portsmouth system, jockey federal that no one position and the of Ohio into State such for the can now determine what were reasonable period prior to 1938. to Great Miami particularly
Reference to state cases Commission, Taxpayers Assn. Public Utilities Ohio v. for, in problem, 2 N. E. 2d does not solve this St. appeals under the law all to the Ohio place, first state Supreme explicitly post- Court are conditioned ing utility of bond dam- payment secure age resulting delay. Code. Such Gen. § security for which the state law should have been provided Inland Co. United here, the lower court Steel exacted *15 States, Morgan, 307 153, 156; 306 U. S. cf. United States v. fitting equity U. S. 197. “It is that exert especially in strength its full order from loss a state which protect injured enforcement suspension has been reason of a of Public of itself.” Service imposed equity state laws Lines, Freight Commission v. Brashear 312 U. S. that might well conclude this Supreme
The Ohio Court require security appropriate failure of the court below to establishing period a justifies the in rate for a Commission very the In the fact that State prior addition, to 1938. legal representatives and the Public Commission Utilities vigorously fought case for of of Ohio have this the State Gas Act is indi- years passage four since the Natural that the State they suppose at least not is cation that do made a the date United was rates as of powerless in which been cited to no case defendant. We have party injunction held that an has Supreme the State in result such inordinate must against proceedings rate may receive. the here respondent returns as to the local opinion our as circumstances Under these a than de- being forecast rather escape a law “cannot Co., Pullman Commission v. Railroad termination.” by the Court there is 496, 499. What was said U. S. meaning word on “The equally applicable here: last therefore Statutes, and Article 6445 of the Texas Civil of the Railroad authority statutory word on the last nor to to us in neither case, belongs this . . court of Texas. . supreme court but district unnecessary if an hardly promoted of law reign is control- supplanted by federal court thus ruling of a “If there a state court.”2 Here as there ling decision of assump- state law the Commission’s was no warrant litigation; authority is an end of tion there Ibid., 500, 501. constitutional issue does arise.” in the delay this that assuming, Court, with the Even particular from the judicial petitioners process bars hold I still think we should sought law, under local relief granted. We injunction improvidently jurisdiction these given equity federal are bases of in- face “plainly order is on its propositions: State expense will put considerable valid”; heavy result non-compliance will complying it; none litigation. my opinion penalties costly or together provide taken these nor all separately ground jurisdiction. federal concerning necessity been above
What has said my is in view law allowing state to decide state courts argument order adequate answer be ade respect invalid.” law this could “plainly *16 In ad quately interpreted and enforced in Ohio courts. re the for dition, ripe do not order before us I consider requiring noth simply view. It is a declaration of status ing cooperation exploration of United other than for problem purpose setting rate eventually the of rates, properly United’s and is thus as outside the realm of if attempt review now as were “an to this review a val by uation made the Interstate Commerce Commission legal although which has no immediate may effect it be the of a subsequent basis rate order.” Rochester Tele phone States, Corp. United v. 307 U. S. this respect, the instant case is identical with East Gas Ohio
2 other exemplifying Buck, For cases viewpoint, see Watson v. 313 S. 387, 402. U. 385, 388. Commission, 115 2dF. Federal Power
Co. v. alleged equitable of grounds the other Unless not case, this is of the Rochester scope the it outside take review. time for appropriate great expense to put will be that United are told We it must in that order, with the Commission’s compliance the Com- necessary so statistical data provide certain It problem. the rate study of may complete its mission any reason in itself is suggested that this cost not unless Petroleum could nor enjoining proceeding, overruled; but to be Commission, 220, is supra, Co. v. Congress by pas- here is that offered special circumstance ex- sought such an prevent Act sage of the Natural cited to no argument and given We are no penditure. Congress had desire indicating that legislative history consumers preclude protecting state states passage for the against period prior unfair rates the federal Act. that re- majority of the Court
I am not sure as order with the Commission’s comply fusal of assuming But subject heavy penalties.3 it to will fact penalty clause, case this order is backed recently Petroleum governed by should be what we said Commission, “No order supra, Co. Public Service 220: fixing regulating has been entered rates or conduct. The necessity expend investigation for the or to take the injunction. It non-compliance justify risk does statute, penalty provisions 614-64 and are Ohio §§ State ex rel. disobeyed, applicable order is where a rate or refund Telephone Pleas, Bell v. Co. Common Ohio St. 555, 192 may E. be that orders of the sort here involved N. but it 7, providing are covered examination of 614-6 records §§ may production so, of witnesses. If this is review be obtained and the judicial penalty prior final practice without fear of to a under Ohio Commission, *17 See e. Mouser Public Utilities g. determination. v. 425, E. 133. We are cited to no cases which St. 179 N. indicate governs procedures this order. which of these irreparable injury against is not the which equity sort of protects.” Cf. Dalton U. Virginia, Machine Co. S. 699. may subjected
That United litigation to a course of rights before its under the fully Ohio law are determined is the least of all equity jurisdiction. reasons this use of compelling consideration here is that “Lawsuits also prove often groundless; to have been but no way has been relieving discovered of a defendant necessity from the a trial to establish Myers the fact.” v. Bethlehem Corp., 303 U. S. 51. judgment below should be reversed and the State permitted
of Ohio to continue as best it can in view of the long delay caused the unfortunate intervention of the federal courts.
HARRISON, COLLECTOR OF INTERNAL REVE
NUE, v. NORTHERN TRUST CO. et EXECU al., TORS. Argued January No. 103. December 1942. Decided