error. tion of the power of the state to pass in- Mr. Alfred R. Page for plaintiff in spection laws, yet, to justify a holding that the application of the Federal Constitution is involved, there should be a question as to the relation between some constitutional provision and the state statute. Under these circumstances we are of opinion that this court has no jurisdiction, and the appeal must be dismissed. (211 U. S. 468) PEOPLE OF THE STATE OF NEW YORK V. THEODORE A. BINGHAM, Police Com missioner of the City of New York. REQUISITION BY EXTRADITION (§ 25*) [Ed. Note.-For other cases, see Extradition, Cent. Dig. 29; Dec. Dig. § 25.*] EXTRADITION (§ 25*) — FUGITIVE CRIMINALS FROM PORTO RICO-TERRITORY." 2. Porto Rico is a territory, within the meaning of the provision of U. S. Rev. Stat. 5278, authorizing the executive authority of any state or territory to make requisi tion for the extradition of fugitive criminals. [Ed. Note. For other cases, see Extradition, Cent. Dig. § 29; Dec. Dig. § 25.*] For other definitions, see Words and Phrases, vol. 8, pp. 6925-6927.] [No. 167.] Messrs. Robert C. Taylor and Robert S. Johnstone for defendant in error. *Mr. Chief Justice Fuller delivered the opinion of the court: September 11, 1906, Kopel was taken into custody by defendant in error, Bingham, who is the police commissioner of the city of New York. The arrest was made in pursu. ance of a rendition warrant issued by the governor of the state of New York, which recited that Kopel was charged with having committed embezzlement in Porto Rico; that he had fled therefrom and taken refuge in New York; and that his return had been lawfully demanded by the governor of Porto Rico. 472 Kopel thereupon sued out a writ of habeas corpus from the supreme court of the state of New York. Bingham made*return * to the writ, and set up the rendition warrant as his authority for detaining the prisoner. Kopel demurred to the return as insufficient in law, and that the governor's warrant had been issued without authority, etc. The matter coming on at special term before Truax, J., the demurrer was overruled and the writ dismissed, and the police commissioner directed to deliver Kopel to the agent of Porto Rico, to be conveyed back to Porto Rico. From this order Kopel appealed to the appellate division of the supreme court in the first department, and the order of Judge Truax was unanimously affirmed. Kopel then appealed to the court of appeals, which affirmed the order below. The record was remitted to the supreme court, to be proceeded upon according to law, and thereupon the order of the court of appeals was made the order of the supreme court, whereby it was ordered that the original or der of the supreme court, which had been affirmed, should be enforced and carried in Argued October 26, 1908. Decided January to execution and effect. To this order, upon I' 4, 1909. the remittitur, this writ of error is addressed. The questions involved are whether the governor of Porto Rico had power and authority to make a requisition upon the governor of the state of New York for the N ERROR to the Supreme Court of the State of New York to review a judgment entered pursuant to the mandate of the Court of Appeals of that state, which had affirmed a judgment of the Appellate Di-arrest and surrender of the fugitive criminal vision of the Supreme Court in the First Department, affirming a judgment of the Supreme Court in and for the County of New York, dismissing a writ of habeas corpus. Affirmed. See same case below in Appellate Division, 117 App. Div. 411, 102 N. Y. Supp. 878; in Court of Appeals, 189 N. Y. 124, 81 N. E. 773. The facts are stated in the opinion. of Porto Rico who had taken refuge in the state of New York, and whether the gov ernor of the state of New York had power and authority to honor such requisition and to issue his rendition warrant for the arrest and surrender of such fugitive. Section 5278 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 3597) reads as follows: "Whenever the executive authority of any For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 474 *473 of the United States that are not locally inapplicable." state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which Among the powers of governors of terrisuch person has fled, and produces a copy of tories of the United States is the authority an indictment found or an affidavit made to demand the rendition of fugitives from before a magistrate of any state or terri- justice under § 5278 of the Revised Stattory, charging the person demanded with utes, and we concur with the courts below having committed treason, felony, or other in the conclusion that the governor of crimes, certified as authentic by the gover- Porto Rico has precisely the same power as nor or chief magistrate of the state or that possessed by the governor of any orterritory from whence the person so charged | ganized territory to issue a requisition for has fled, it shall be the duty of the execu- the return of a fugitive criminal. People tive authority of the state or territory to ex rel. Kopel v. Bingham, 189 N. Y. 124, which such person has fled to cause him to 81 N. E. 773, affirming 117 App. Div. 411, be arrested and secured, and to cause no- 102 N. Y. Supp. 878. It was so held by tice of the arrest to be given to the execu- Judge Hough, of the district court of the tive authority making such demand, or to United States for the southern district of the agent of such authority appointed to New York, in passing upon a similar applireceive the fugitive, and to cause the fugi- cation by the same relator. Re Kopel, 148 tive to be delivered to such agent when he Fed. 505. shall appear." Subdivision 2 of § 2 of article 4 of the Fed By 827 of the Code of Criminal Proce- eral Constitution refers in terms to the states dure of New York it is provided: only, but the act of Congress of February "It shall be the duty of the governor, in 12, 1793 [1 Stat. at L. 302, chap. 7, U. S. all cases where, by virtue of a requisition Comp. Stat. 1901, p. 3597], carried forward made upon him by the governor of another into § 5278 of the Revised Statutes, made state or territory, any citizen, inhabitant, provision for the demand and surrender of or temporary resident of this state is to fugitives by the governors of the territories be arrested as a fugitive from justice as well as of the states; and it was long ago to issue and transmit a warrant held that the power to extradite fugitive for such purpose to the sheriff of the proper criminals, as between state and territory, is county (except in the city and as complete as between one state and another. county of New York, where such warrant Ex parte Reggel, 114 U. S. 642, 650, 29 L. shall only be issued to the superintendent ed. 250, 252, 5 Sup. Ct. Rep. 1148. If § or any inspector of police) .. Before 5278 does not apply, no other statute does. any officer to whom such warrant shall be And as to §§ 14 and 17 of the Foraker act, directed or intrusted shall deliver the per- no contention is made that they are locally son arrested into the custody of the agent inapplicable, except as it is argued that § or agents named in the warrant of the gov-5278 of the Revised Statutes is not appliernor of this state, such officer must, unless the same be waived, as hereinafter stated, take the prisoner or prisoners before a judge of the supreme court or a county judge, who shall, in open court, if in session, otherwise at chambers, inform the prisoner or prisoners of the cause of his or their arrest," and that he or they may have a writ of habeas corpus upon filing an affi davit to the effect that he or they are not the person or persons mentioned in said requisition. By § 14 of the organic act of Porto Rico, commonly called the Foraker act, it is provided that "the statutory laws of the United States not locally inapplicable, except as herein before or hereinafter otherwise provided, shall have the same force and effect in Porto Rico as in the United States, except the internal revenue laws," etc. 31 Stat. at L. 80, chap. 191. Section 17 provides that the governor "shall, at all times, faithfully execute the laws, and he shall in that behalf have all the powers of governors of the territories cable at all, because Porto Rico is not a "territory," as that word is used therein. We quite agree with Judge Hough that "to allege that the only existing law under which a Porto Rican fugitive from justice can be returned thereto from the United States is 'locally inapplicable' would be making a jest of justice." It is impossible to hold that Porto Rico was not intended to have power to reclaim fugitives from its justice, and that it was intended to be created an asylum for fugitives from the United States. In the case of Ex parte Morgan, 20 Fed. 298, 305, the question involved was the right of the governor of Arkansas to honor a requisition for the surrender of a fugitive criminal, received from the principal chief of the Cherokee Nation, and the court, in holding that the governor was not authorized to honor such a requisition, for the reason that the chief of the Cherokee Nation was not the executive authority of any "state" or "territory," inasmuch as the Cherokee Nation or Indian territory was *476 not an organized government, with an executive, legislative, and judicial system of its own, but was exclusively under the jurisdiction of the United States, defined a territory within the meaning of the extradition statute as follows: ment by the act of May 2, 1890 (26 Stat. at L. 81, chap. 182, § 1). In Gonzales v. Williams, 192 U. S. 15, 48 L. ed. 322, 24 Sup. Ct. Rep. 177, the court unanimously held that a citizen of Porto Rico was not an alien immigrant, and, among other things, an opinion of Attorney General Knox, relating to a Porto Rican named Molinas, was quoted from as follows: "He [i. e., Molinas] is also clearly a Porto Rican; that is to say, a permanent inhabitant of that island, which was also turned over by Spain to the United States. As his country became a domestic country, and ceased to be a foreign country within the meaning of the tariff act above referred to [30 Stat. at L. 151, 203, chap. 11, U. S. Comp. Stat. 1901, pp. 1626, 1690], and has now been fully organized as a country of the United States by the Foraker act, it seems to me that he has become an American, notwithstanding such supposed omission." It may be justly asserted that Porto Rico is a completely organized territory, although not a territory incorporated into the United States, and that there is no reason why Porto Rico should not be held to be such a territory as is comprised in § 5278. Order affirmed. "A portion of the country not included within the limits of any state, and not yet admitted as a state into the Union, but organized under the laws of Congress with a separate legislature, under a territorial governor and other officers appointed by the President and Senate of the United States." In the case of Re Lane, 135 U. S. 443, 34 L. ed. 219, 10 Sup. Ct. Rep. 760, the accused was charged with the commission of an offense "within that part of the Indian territory commonly known as Oklahoma." He was tried and convicted upon an indictment, found under an act of Congress which excepted the "territories" from its operation; and it was claimed that Oklahoma, which was then a part of the Indian territory, was a territory, and came within the exemption of the act. But the court, Miller, J., said: "But we think the words 'except the territories' have reference exclusively to that system of organized government, long existing within the United States, by which certain regions of the country have been erected into civil governments. These governments have an executive, a legislative, and a judicial system. They have the pow. ers which all these departments of government have exercised, which are conferred upon them by act of Congress, and their legislative acts are subject to the disapproval of the Congress of the United States. They are not, in any sense, independent governments; they have no Senators in Congress and no Representatives in the lower house of that body, except what are called 'Delegates,' with limited functions. Yet they exercise nearly all the powers of government, under what are generally called organic acts,' passed by Congress, conferring such powers on them. It is this class of governments, long known by the name of 'territories,' that the act of Congress excepts from the operation of this statute, while it extends it to all other places over which 1. A Federal circuit court, if properly the United States have exclusive jurisdic-appealed to, cannot decline, on the ground tion. "Oklahoma was not of this class of territories. It had no legislative body. It had no government. It had no established or organized system of government for the control of the people within its limits, as the territories of the United States have and have always had. We are therefore of opinion that the objection taken on this point by the counsel for prisoner is unsound." Oklahoma was given a territorial govern (212 U. S. 19) WILLIAM R. WILLCOX et al., Constitut ing the Public Service Commission, etc., of New York, Appts., CONSOLIDATED V. GAS COMPANY OF NEW YORK. (No. 396.) CITY OF NEW YORK, Appt., CONSOLIDATED V. GAS COMPANY OF NEW YORK. (No. 397.) WILLIAM S. JACKSON, as Attorney General of the State of New York, Appt., CONSOLIDATED V. GAS COMPANY OF COURTS (8 490*)-FEDERAL COURTS-JURIS- of discretion or comity, to take jurisdic- [Ed. Note.-For other cases, see Courts, Cent. NESS. 2. Legislative regulation of gas rates is invalid, where such rates are plainly unreasonable to the extent that their enforcement will be equivalent to the taking of property for public use without such com *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 3. The case must be a clear one before the courts should be asked to interfere by injunction with state legislation regulating gas rates, in advance of any actual experience of the practical result of such rates. [Ed. Note.-For other cases, see Gas, Cent. Dig. § 10, 10%; Dec. Dig. § 14.] GAS (8 14*)-RATES-LEGISLATIVE REGU LATION-REASONABLENESS VALUATION. FRANCHISE made of continuing the business under Dig. 88 10. 10%; Dec. Dig. § 14.1 LATION-REASONABLENESS VALUATION. FRANCHISE 9. The assessed value for taxation of the franchises of a gas company furnishes no criterion by which to ascertain their value, when testing the reasonableness of gas rates as fixed by statute, where the taxes 4. The valuation of the franchises of the are treated by the company as part of its constituent gas companies as fixed by them operating expenses, to be paid out of its when organizing a consolidated corporation earnings before the net amount applicable pursuant to N. Y. Laws 1884, chap. 367, to dividends can be ascertained. which valuation was included in the total [Ed. Note. For other cases, see Gas, Cent. sum for which the consolidated corporation Dig. $$ 10, 102: Dec. Dig. § 14.*] issued its stock, must be accepted by the courts in testing the reasonableness of legislative regulation of gas rates as conclusive of such value at the time of consolidation, GAS ($ 14*)-RATES-LEGISLATIVE REGU LATION REASONABLENESS GOOD WILL. - VALUE OF 10. No allowance for the value of the value of the property of a gas company good will should be made in estimating the upon which it is entitled to earn a fair reableness of the rates fixed by statute, where turn, for the purpose of testing the reasonsuch company is secure from possible competition. see Gas, Cent. where the validity of the agreement fixing [Ed. Note.-For other cases, [Ed. Note.-For other cases, see Gas, Cent. 5. Increase since consolidation of the 11. The valuation of the property of a tangible assets of a consolidated gas com- gas company, upon which it is entitled to pany and in the amount of gas supplied by a fair return, must, as a general rule, be it does not justify the court, when testing determined as of the time when the inthe reasonableness of the rates fixed by statute, in attributing a proportional increase to the value of the franchises as fixed by the constituent companies at the time of consolidation. quiry is made regarding the reasonableness [Ed. Note. For other cases, see Gas, Cent. 12. The requirements as to gas pressure [Ed. Note.-For other cases, see Gas, Cent. Dig. § 10, 10%; Dec. Dig. § 14.] GAS (§ 14*)-RATES-LEGISLATIVE REGULATION-REASONABLENESS-INCOME. 6. There is no particular rate of com-made by N. Y. Laws 1905, chap. 736, and pensation which any corporation subject to legislative control respecting rates has the right to obtain without legislative interference. [Ed. Note.-For other cases, see Gas, Cent. Dig. § 10, 10%; Dec. Dig. § 14.*] Laws 1906, chap. 125, fixing gas rates in New York city, are confiscatory, where, to put this pressure upon the mains and other service pipes, in their present condition, is to run a great risk of explosion and consequent disaster, and to eliminate such dan GAS (§ 14*)-RATES-LEGISLATIVE REGU-ger requires an expenditure of many mil LATION-REASONABLENESS-INCOME. 7. Gas rates which will yield to a corporation having a monopoly of the gas serv ice in New York city a return of 6 per cent upon the fair value of the property actually used by such company in its business are not confiscatory. [Ed. Note.-For other cases, see Gas, Cent. Dig. 10, 10%; Dec. Dig. § 14.*] GAS (§ 14*)-RATES-ENJOINING ENFORCE MENT. 8. A court of equity ought not to interfere by injunction with state legislation fixing gas rates before a fair trial has been lions of dollars, from which no return can 13. The invalidity of the provisions as to gas pressure and penalties contained in N. Y. Laws 1905, chap. 736, and Laws 1906, chap. 125, regulating gas rates in New York city, does not invalidate the provisions of those acts respecting rates, from which the invalid provisions are clearly separable. [Ed. Note.-For other cases, see Statutes, Cent. Dig. $§ 58, 59; Dec. Dig. § 64.*] For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 29 S. C.-13. LATION GAS ( 14*)-RATES-LEGISLATIVE REGU-I was granted (146 Fed. 150), and, after REASONABLENESS - DISCRIMI- issue was joined, the case was referred to to take testimony, in conformity to the prac one of the standing masters of the court tice indicated in Chicago, M. & St. P. R. Co. v. Tompkins, 176 U. S. 167, 179, 44 L. ed. 417, 422, 20 Sup. Ct. Rep. 336. 14. A discrimination between the individual consumer and the city in the provisions of N. Y. Laws 1905, chap. 736, and Laws 1906, chap. 125, fixing gas rates in New York city, is not material to the inquiry as to the reasonableness of such rates if the total profits from the gas supplied to all consumers is sufficient to insure the requisite return upon the property used by the gas company in its business. A hearing was had before the master, who reported in favor of the complainant. The case then came before the circuit court, and, after argument, a final decree was entered, restraining defendants from enforcing the [Ed. Note. For other cases, see Gas, Cent. Dig. § 10, 10%; Dec. Dig. § 14.*] provisions of the acts and the order relatDISMISSAL AND NONSUIT (§ 75*)-DISMISS-ing to rates or penalties. 157 Fed. 849. AL WITHOUT PREJUDICE. These various defendants, except the district [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. § 169; Dec. Dig. § 75.*] [Nos. 396, 397, 398.] Argued November 4, 5, 6, 1908. Decided A 15. The dismissal of a bill which seeks attorney, have taken separate appeals dito enjoin the enforcement of legislative rectly to this court from the decree so enregulation of gas rates as confiscatory in tered. The acts which are declared void as advance of any actual experience of the practical result of such rates should be unconstitutional are chapter 736 of the Laws without prejudice, wh e such practical ex- of 1905, which limits the price of gas sold perience may prevent the complainant from to the city of New York to a sum not to obtaining a fair return upon the property exceed 75 cents per thousand cubic feet. used by it in its business. The act also requires that the gas sold shall have a specified illuminating power, and a certain pressure at all distances from the place of manufacture. Penalties are attached to a violation of the act. The other act is chapter 125 of the Laws of 1906, limiting the prices of gas in the boroughs of Manhattan and the Bronx, to other consumers than the city of New York, to 80 cents per thousand cubic feet, with like penalties as in the act of 1905, and with the same provisions as to illuminating power and the pressure in the service mains. The order which was declared invalid was one made by the gas commission created under and by virtue of chapter 737 of the Laws of 1905, the order providing that the price of gas in the city should be not more than 80 cents to consumers other than the city of New York. The order had the same provisions as to illuminating power and pressure as the acts above mentioned. The master and the court below found that the 80-cent rate was so low as to amount to confiscation, and hence the acts and the order were invalid as in violation of the Federal Constitution. PPEALS from the Circuit Court of the United States for the Southern District of New York to review a decree enjoining the enforcement of legislative regu lation of gas rates. Reversed with directions to dismiss the bill without prejudice. See same case below, 157 Fed. 849. *Statement by Mr. Justice Peckham: The appellee, complainant below, filed its bill May 1, 1906, in the United States circuit court for the southern district of New York, against the city of New York, the attorney general of the state, the district attorney of New York county, and the gas commission of the state, to enjoin the enforcement of certain acts of the legislature of the state, as well as of an order made by the gas commission, February 23, 1906, to take effect May 1, 1906, relative to rates for gas in New York city. Since the commencement of the suit, the gas commission has been abolished and the public service commission has been created by the legislature in its stead. The official term of Attorney General Meyer has also expired, and Attorney General Jackson, his successor, has been substituted in his place. *The ground for the relief asked for in the bill was the alleged unconstitutionality of the acts and the order, because the rates fixed were so low as to be confiscatory. Up Messrs. Edward B. Whitney and George S. Coleman for the Public Service Commission. Messrs. Alton B. Parker, William P. Burr, and Francis K. Pendleton for the city of New York. Mr. William S. Jackson in propria persona for the Attorney General. Messrs. James M. Beck, John A. Garver, Charles F. Mathewson, and Shearman & Sterling for the Consolidated Gas Company. Messrs. W. Bourke Cochran and Nathan on filing the bill a preliminary injunction Matthews as amici curiæ. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |