Under § 67 of the Public Utilities Act of California, as
construed by the supreme court of the state, a petition to that
court for a writ of review to bring up proceeding of the Board of
Railroad Commissioner in which rates for electric power were fixed
in alleged violation of constitutional right and excess of the
Board's jurisdiction may be disposed of upon the merits, by an
order simply refusing the writ, if the facts are fully stated in
the petition, the provisions for issuing such writ and for
subsequent decision upon the record from the Board not being
mandatory in such case. P.
251 U. S. 370
In a suit brought in the district court to enjoin enforcement of
rates fixed by such board, it will be presumed that a petition, not
in the record, upon which the state supreme court refused a writ of
Page 251 U. S. 367
exhibited the Board's proceedings and presented the questions
which that court was empowered to decide, viz.,
the Board pursued its authority and whether any constitutional
right, state or federal, was violated, and the order refusing the
writ will be deemed conclusive of such question, although not
accompanied by an opinion of the state court. P. 251 U. S.
257 F. 197 affirmed.
The case is stated in the opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
Appeal from decree of the district court dismissing bill of
appellant, herein called the Electric Company, upon motion of
appellees, herein called the Commission.
The ground of the motion and the decree sustaining it was that
it appeared from the averments of the bill that the controversy it
stated was res judicata.
The bill is long, but the grounds
of it can be stated with fair brevity. The Electric Company is a
California corporation and has been engaged for more than ten years
in supplying electricity (called in the bill electric energy) for
domestic use in the Town of St. Helena and vicinity, and the
Calistoga Electric Company, also a California corporation, has been
for seven years a distributing agency of the Electric Company and
the latter is not, as to the Calistoga Company, a public utility.
By virtue of certain circumstances, the Electric Company entered
into a contract with one E. L. Armstrong by which it agreed not to
extend its lines into Calistoga territory, and Armstrong agreed to
buy from it all of the electricity to be sold by him for 18 years.
At that time, the Electric Company, under the
Page 251 U. S. 368
laws of California, had a right to extend its lines and become a
competitor of other companies or individuals.
September 14, 1911, the Calistoga Company became the successor
in interest of Armstrong and to his rights and obligations under
the contract with the Electric Company, and the Calistoga Company
acknowledged the fact of such succession and continued to buy its
electricity from the Electric Company at the rates set forth in the
contract until November 18, 1913, when it petitioned the Commission
to set aside the contract and compel the Electric Company to accept
other rates than those mentioned in the contract.
The Electric Company answered the petition, set up the contract,
and alleged that any change in its rates would be a violation of §
10, Article I, of the Constitution of the United States and the
Fourteenth Amendment thereto.
January 24, 1914, the Commission instituted an investigation on
its own motion which with the petition of the Calistoga Company was
consolidated. The petitions were heard together upon evidence and
The Commission subsequently made an order fixing rates much less
than those of the contract.
June 20, 1914, the Electric Company filed a petition for
rehearing, setting up its rights under the Constitution of the
United States. A rehearing was denied.
May 1, 1914, the Electric Company and the Calistoga Company
entered into an agreement fixing rates subject to the approval of
the Commission, which the Calistoga Company agreed to secure. It
did secure an informal approval of them, and paid them until June
The rates fixed by the Commission never became effective, and
therefore the Electric Company did not petition for a review of
them by the supreme court of the state, nor commence proceedings in
any court of the United States to enjoin the order establishing
them or to have it set aside as null and void.
Page 251 U. S. 369
June 27, 1916, the Calistoga Company again petitioned the
Commission to establish other rates than those fixed in the
agreement of that company with the Electric Company. The latter
company filed a counter-petition to have established the rates
fixed in the contract of May 1, 1914 (reduced to writing September
15, 1914), and the petition and that of the Calistoga Company came
on to be heard, and, after evidence adduced, the Commission,
November 15, 1916, reduced the rates fixed in the written contract
of September 15, 1914, and made the reduced rates effective
December 20, 1916.
A rehearing was denied May 24, 1917, and on June 20, 1917, the
Electric Company duly filed a petition in the Supreme Court of the
State of California praying that a writ of review issue commanding
the Commission on a day named to certify to the court a full and
complete record of the proceedings before it, the Commission, and
that, upon a return of the writ, the orders and decisions of the
Commission be reversed, vacated, and annulled upon the ground that
they violated the company's rights under the Constitution of the
United States, particularly under § 10, Article I, and under § 1 of
Article XIV of the Amendments thereto. The Supreme Court of
California denied the petition for writ of review and refused to
issue a writ of review as prayed for in said petition.
On or about January 27, 1918, the California Light &
Telephone Company became a party to the contracts between the
Electric Company and the Calistoga Company by reason of conveyances
from the latter company.
In the present bill, it is alleged that the orders and decisions
of the Commission were illegal, were in excess of its jurisdiction,
and that the Electric Company has no adequate remedy at law, and
prays a decree declaring the orders and decisions null and void,
that they be enjoined of enforcement or made the basis of suits
against the company to enforce them.
Page 251 U. S. 370
The Commission and other defendants moved to dismiss on the
ground that it appeared from the allegations of the bill that "the
subject matter thereof was res judicata
" and that there
was no ground stated entitling the company to the relief prayed.
The motion was granted, and to the decree adjudging a dismissal of
the bill this writ of error is directed.
The district court (Judge Van Fleet) based its ruling upon the
allegations of the bill that the Electric Company filed in the
Supreme Court a petition for a review of the decision and order of
the Commission and for their annulment, and that the supreme court
denied the petition.
The Electric Company to the ruling of the court opposes the
contention that the supreme court denied the company's "petition
for a preliminary writ and refused to even cause the record in the
case, certified by the Commission, to be brought up," and therefore
"simply refused to entertain jurisdiction of the controversy." And
it is the further contention that the court could neither affirm
nor set aside the orders of the Commission until the record was
certified to it and the parties were before it and after formal
hearing in the matter.
The contention is based on § 67 of the Public Utilities Act of
the state. The § is too long to quote. It is part of the procedure
provided by the state for the execution of its policy in regard to
the public utilities of the state, and affords a review of the
action of the Commission regulating them. It is quite
circumstantial and explicit. It provides for a review of the action
of the Commission by writ of certiorari or review from the supreme
court of the state which "shall direct the commission to certify
its record in the case to the court," the cause to "be heard on the
record of the commission as certified by it." No other evidence is
to be received, and the review is confined to an inquiry "whether
the commission has regularly pursued its authority" or
Page 251 U. S. 371
whether its order or decision "violates any right of the
petitioner under the Constitution of the United States or of the
State of California." The findings and conclusions of the
Commission on questions of fact are to be final. The Commission and
the parties have the right of appearance, and, upon the hearing,
the court "shall enter judgment either affirming or setting aside
the order or decision of the commission." The Civil Code of the
state is made applicable so far as it is not inconsistent with the
prescribed proceedings, and no court of the state except the
supreme court to the extent specified shall have jurisdiction over
any order or decision of the Commission except "that the writ of
mandamus shall lie from the supreme court to the commission in all
These provisions counsel insist were not observed, and that
therefore there was not and could not have been "an adjudication of
the controversy" by the supreme court. There was nothing, it is
insisted, but the Electric Company's petition before the court, and
that none of the essential requirements of § 67 were observed. No
writ of review was issued -- none certified by the Commission or
returned, no return day fixed or hearing had on a certified record,
no appearance of the parties, no order of the court affirming or
setting aside of the Commission's order. In other words, the
substance of the contention is that the court, instead of hearing,
refused to hear, instead of adjudicating, refused to adjudicate,
and that, from this negation of action or decision there cannot be
an assertion of action or decision with the estopping force of
assigned to it by the district court.
Counsel, to sustain the position that he has assumed and
contends for, insists upon a literal reading of the statute and a
discussion of the elements of res judicata.
We need not
follow counsel into the latter. They are
Page 251 U. S. 372
familiar, and necessarily cannot be put out of mind, and the
insistence upon the literalism 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 is not in the record. We may presume it was
circumstantial in its exposition of the proceedings before the
Commission and of the latter's decisions and orders, and exhibited
and submitted to the court the questions it was authorized to
entertain -- whether the Commission "pursued its authority,
including a determination of whether the order or decision"
violated "any right" of the company "under the Constitution of the
United States or of the State of California."
Whether, upon such an exhibition of the proceedings and
questions, the court was required to pursue the details of the
section or decide upon the petition was a matter of the
construction of the section and the procedure under it. And the
supreme court has so decided. Ghriest v. Railroad
170 Cal. 63; Mt. Konocti Light & Power Co.
170 Cal. 468; E. Clemens Horst Co. v. Railroad
175 Cal. 660; Hooper & Co. v. Railroad
175 Cal. 811. In those cases, the applications for
writs of certiorari were denied, which was tantamount to a decision
of the court that the orders and decisions of the Commission did
not exceed its authority or violate any right of the several
petitioners under the Constitution of the United States or of the
State of California. And so with the denial of the petition of the
Electric Company -- it had like effect and was the exercise of the
judicial powers of the court. And, we repeat, to enable the
invocation of such powers was the purpose of § 67, and they could
be exercised upon the display in the petition of the proceedings
before the Commission and of the grounds upon which they were
Page 251 U. S. 373
we agree with the district court that "the denial of the
petition was necessarily a final judicial determination, . . .
based on the identical rights" asserted in that court and repeated
here. Williams v. Bruffy, 102 U.
, 102 U. S. 255
And further, to quote the district court: "Such a determination is
as effectual as an estoppel as would have been a formal judgment
upon issues of fact." Calaf v. Calaf, 232 U.
; Hart Steel Co. v. Railroad Supply Co.,
244 U. S. 294
244 U. S.
The court held, and we concur, that absence of an opinion by the
supreme court did not affect the quality of its decision or detract
from its efficacy as a judgment upon the questions presented, and
its subsequent conclusive effect upon the rights of the Electric
Company. Therefore the decree of the district court is