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It is sufficient to say that, by the act of | possession of the lands, the action of the July 1, 1902, a suit was authorized in the Secretary in striking him from the roll was citizenship court to annul the citizenship wholly unwarranted, and not within the audecrees made in the United States court in thority and control over public land titles the Indian territory, under the act of June given to the Interior Department. 10, 1896; provision was made for general suits in which a nation might be represented by ten representative defendants; and it was provided that when citizenship judgments in the court of the Indian territory were annulled in the authorized test suit, the party aggrieved, by being deprived of favorable judgment upon his claim of citizenship, might himself appeal to the citizenship court, and such proceeding should be had as ought to have been had in the court to which the same was taken from the commission, as if no judgment or decision had been rendered therein. And it was further provided that no person whose name did not appear upon the rolls, as provided for in this act, should be entitled to participate in the common property of the Choctaw and Chickasaw tribes.

The act of April 26, 1906 (34 Stat. at L. 137, chap. 1876), provided that the rolls of the tribes should be fully complete on or before the 4th day of March, 1907, and after that day the Secretary of the Interior should have no jurisdiction to approve the enrolment of any person.

It is insisted by the learned counsel for the government that the court had no jurisdiction to entertain this suit, because the legal title has not as yet passed from the government, as no patent has passed. We have no disposition to question those cases in which this court has held that the courts may not interfere with the Land Department in the administration of the public lands while the same are subject to disposition under acts of Congress intrusting such matters to that branch of the government. Some of these cases are cited in the late case of United States v. Detroit Timber & Lumber Co. 200 U. S. 321, 50 L. ed. 499, 26 Sup. Ct. Rep. 282, and the principle to be gathered from them is, that while the land is under the control of the Land Department prior to the issue of patent, the court will not interfere with such departmental administration. This was held as late as the case of Love v. Flahive, 205 U. S. 195-198, 51 L. ed. 768-770, 27 Sup. Ct. Rep. 486.

By the conceded action of the Secretary prior to the striking of Goldsby's name from the rolls, he had not only become entitled to participate in the distribution of the funds of the nation, but, by the express terms of § 23 of the act of July 1, 1902 (32 Stat. at L. 641, chap. 1362), it was provided that the certificate should be conclusive evidence of the right of the allottee to the tract of land described therein. We have therefore under consideration in this case the right to control by judicial action an alleged unauthorized act of the Secre tary of the Interior for which he was given no authority under any act of Congress.

It is insisted that mandamus is not the proper remedy in cases such as the one now under consideration. But we are of opinion that mandamus may issue if the Secretary of the Interior has acted wholly without authority of law. Since Marbury v. Madison, 1 Cranch, 137, 2 L. ed. 60, it has been held that there is a distinction between those acts which require the exercise of discretion or judgment and those which are purely ministerial, or are undertaken entirely without authority, which may become the subject of review in the courts. The subject was under consideration in Noble v. Union River Logging R. Co. 147 U. S. 165, 37 L. ed. 123, 13 Sup. Ct. Rep. 271, and Mr. Justice Brown, delivering the opinion of the court, cites many of the previous cases of this court, and, speaking for the court, says:

"We have no doubt the principle of these decisions applies to a case wherein it is contended that the act of the head of a department, under any view that could be taken of the facts that were laid before him, was ultra vires, and beyond the scope of his authority. If he has no power at all to do the act complained of, he is as much subject to an injunction as he would be to a mandamus if he refused to do an act which the law plainly required him to do. As observed by Mr. Justice Bradley in Board of Liquidation v. McComb, 92 U. S. 531, 541, 23 L. ed. 623, 628: 'But it has been well setBut the question presented for adjudica- tled that when a plain official duty, requir tion here does not involve the control of ing no exercise of discretion, is to be perany matter committed to the Land Depart- formed, and performance is refused, any perment for investigation and determination. son who will sustain personal injury by The contention of the relator is, that as such refusal may have a mandamus to comthe Secretary had exercised the authority pel its performance; and when such duty is conferred upon him and placed his name threatened to be violated by some positive upon the rolls, and the same had been cer- official act, any person who will sustain pertified to the commission, and he had re-sonal injury thereby, for which adequate ceived an allotment certificate, and was in compensation cannot be had at law, may

29 S. C.-5.

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have an injunction to prevent it. In such rolment, the rolls shall be deemed complete. cases the writs of mandamus and injunction The rolls so prepared shall be made in are somewhat correlative to each other.'" quintuplicate, one to be deposited with the We think this principle applicable to this Secretary of the Interior, one with the Comcase, and that there was jurisdiction to is- missioner of Indian Affairs, one with the sue the writ of mandamus. principal chief of the Choctaw Nation, one with the governor of the Chickasaw Nation, and one to remain with the Commission to the Five Civilized Tribes."

The statute provides in § 30, act of July tive of the action of the Dawes Commission, 1, 1902, supra:

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For the reasons given we think this action was unwarranted, and that the relator is entitled to be restored to the status he occupied before that order was made. The judgment of the Court of Appeals of ment of the Interior as of April 16, 1904. the District of Columbia is affirmed.

The Allisons made application to the com-acter of the body. mission for admission to citizenship under [Ed. Note.-For other cases, see Courts, Cent. the act of June 10, 1896 (29 Stat. at L. 321,Dig. § 1418; Dec. Dig. § 508. For other definitions, see Words and Phrases, chap. 398). Their applications were denied vol. 2, pp. 1672-1682; vol. 8, p. 7622.]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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JUDGMENT (8 552*)-RES JUDICATA-ES-
TABLISHMENT OF RAILWAY RATES BY
STATE COMMISSION-"COURTS"-"LEGIS-
LATIVE PROCEEDINGS."

passenger rates. The bills allege, with some elaboration of the facts, that the rates in question are confiscatory, and other matters 2. The establishment of railway passen- not necessary to mention, and set up the ger rates by the Virginia Corporation Com- 14th Amendment, etc. The defendants apmission is not res judicata in a suit which peared specially, and by demurrer and plea seeks injunctive relief on the ground that respectively put forward that the proceedthe rates are confiscatory, although such ings before the commission are proceedings commission, for some purposes, is a court, in a court of the state, which the courts of and acted only after hearing and investigation, since proceedings to establish rates are legislative, and not judicial, in their

nature.

3. A Federal circuit court, on principles of comity, should not entertain a suit by which injunctive relief is sought against railway passenger rates as fixed by the Virginia State Corporation Commission, in advance of the appeal to the highest state court from the order fixing the rates, which is given by the state Constitution' as of right to any aggrieved party.

[Ed. Note.-For other cases, see Courts, Dec. Dig. 508.]

the United States are forbidden to enjoin (Rev. Stat. § 720, U. S. Comp. Stat. 1901, p. 581), and that the decision of the commission makes the legality of the rates res judicata. On these pleadings final decrees fendants appealed to this court. Therefore, were entered for the plaintiffs, and the deas the case is presented, it is to be assumed that the order confiscates the plaintiffs' property and infringes the 14th Amendment if the matter is open to inquiry. The question principally argued, and the main question to be discussed, is whether the order is one which, in spite of its constitutional invalidity, the courts of the United States are not at liberty to impugn.

The State Corporation Commission is esSTATES ( 191*)-IMMUNITY FROM SUIT-tablished and its powers are defined at ENJOINING STATE OFFICERS.

4. A bill filed in a Federal court against a state commission to restrain its members

on

from enforcing railway passenger rates established by such commission, the ground that such rates are confiscatory, is not bad as an attempt to enjoin legislation or as a suit against the state.

[Ed. Note. For other cases, see States, Cent. Dig. 88 179-184; Dec. Dig. § 191.*]

[Nos. 270-275.]

Argued October 16, 19, 20, 1908. Decided

November 30, 1908.

PPEALS from the Circuit Court of the A United States for the Eastern District of Virginia to review decrees enjoining the enforcement of railway passenger rates as fixed by the Virginia State Corporation Commission, on the ground that such rates are confiscatory. Reversed.

The facts are stated in the opinion.

Messrs. William A. Anderson, John W. Daniel, and A. Caperton Braxton for appellants.

Messrs. Alfred P. Thom, Alexander Hamilton, William B. McIlwaine, H. T. Wickham, Henry Taylor, Jr., S. S. P. Patteson, Henry L. Stone, Joseph I. Doran, Lucian H. Cocke, John K. Graves, and George H. Taylor for appellees.

Mr. Justice Holmes delivered the opin

ion of the court:

These are bills in equity brought in the circuit court to enjoin the members and clerk of the Virginia State Corporation Commission from publishing or taking any other steps to enforce a certain order fixing

For other cases see same topic & § NUMBER in

There is no need to rehearse the provisions length by the Constitution of the state. that give it dignity and importance or that add judicial to its other functions, because we shall assume that, for some purposes, it is a court within the meaning of Rev. Stat. § 720, and in the commonly accepted sense of that word. Among its duties it exercises the authority of the state to supervise, regulate, and control public service corporations, and to that end, as is said by the supreme court of Virginia and repeated by counsel at the bar, it has been clothed with legislative, judicial, and executive powers. Norfolk & P. Belt Line R. Co. v. Com. 103 Va. 289, 294, 49 S. E. 39.

The state Constitution provides that the commission, in the performance of the duty just mentioned, shall, from time to time, prescribe and enforce such rates, charges, classification of traffic, and rules and regulations for transportation and transmission companies doing business in the state, and shall require them to establish and maintain all such public service facilities and conveniences as may be reasonable and just. charge, etc., it is to give notice (in case of a Before prescribing or fixing any rate or cific company by name, by four weeks' pubgeneral order not directed against any spelication in a newspaper) of the substance of the contemplated action and of a time and place when the commission will hear objections and evidence against it. If an order is passed, the order again is to be published as above before it shall go into effect. An appeal to the supreme court of appeals is given of right to any party aggrieved, upon Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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ing, that, if it was proceeding against the appellees to enforce this order and to punish them for a breach, it then would be sitting as a court and would be protected from interference on the part of courts of the United States.

conditions not necessary to be stated, and that court, if it reverses what has been done, is to substitute such order as, in its opinion, the commission should have made. The commission is to certify the facts upon which its action was based and such evidence as may be required, but no new evidence is to be received, and how far the findings of the commission can be revised perhaps is not quite plain. No other court of the state can review, reverse, correct, or annul the action of the commission, and, in collateral proceedings, the validity of the rates established by it cannot be called investigates, declares, and enforces liabilities doubt.

When a rate has been fixed, the commission has power to enforce compliance with its order by adjudging and enforcing, by its own appropriate process, against the offending company, the fines and penalties established by law. But a hearing is required, and the validity and reasonableness of the order may be attacked again in this proceeding, and all defenses seem to be open to the party charged with a breach.

On July 31, 1906, under the provisions outlined, the commission published in a newspaper notice to the several steam railroad companies doing business in Virginia, and all persons interested, that, at a certain time and place, it would hear objections to an order prescribing a maximum rate of 2 cents a mile for the transportation of passengers, with details not needing to be stated. A hearing was had, and the complainants (appellees) severally appeared and urged objections similar to those set up in the bills. On April 27, 1907, the commission passed an order prescribing the rates, but in more specific form. For certain railroads named, including all of the complainants except as we shall state, the rate was to be 2 cents; for certain excepted branches of the Southern Railway Company, 22; for others, including the Chesapeake Western Railway, 3; and for others 32 cents a mile, with a minimum charge of 10 cents. Publication of the order was directed, and at that stage these bills were brought.

But we think it equally plain that the proceedings drawn in question here are legislative in their nature, and none the less so that they have taken place with a body which, at another moment, or in its principal or dominant aspect, is a court such as is meant by § 720. A judicial inquiry in

as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of a rule for the future, and therefore is an act legislative, not judicial, in kind, as seems to be fully recognized by the supreme court of appeals (Com. v. Atlantic Coast Line R. Co. 106 Va. 61, 64, 7 L.R.A.[N.S.] 1086, 117 Am. St. Rep. 983, 55 S. E. 572), and especially by its learned president in his pointed remarks in Winchester & S. R. Co. v. Com. 106 Va. 264, 281, 55 S. E. 692. See, further, Interstate Commerce Commission v. Cincinnati, N. O. & T. P. R. Co. 167 U. S. 479, 499, 500, 505, 42 L. ed. 243, 253, 255, 17 Sup. Ct. Rep. 896; San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 440, 47 L. ed. 892, 893, 23 Sup. Ct. Rep. 571.

Proceedings legislative in nature are not proceedings in a court, within the meaning of Rev. Stat. § 720, no matter what may be the general or dominant character of the body in which they may take place. Southern R. Co. v. Greensboro lce & Coal Co. 134 Fed. 82, 94, Affirmed in 202 U. S. 543, 50 L. ed. 1142, 26 Sup. Ct. Rep. 722. That question depends not upon the character of the body, but upon the character of the proceedings. Ex parte Virginia, 100 U. S. 339, 348, 25 L. ed. 676, 680. They are not a In order to decide the cases it is not nec- suit in which a writ of error would lie unessary to discuss all the questions that were der Rev. Stat. § 709, and act of February raised or touched upon in argument, and 18, 1875, chap. 80, 18 Stat. at L. 318, U. some we shall lay on one side. We shall S. Comp. Stat. 1901, p. 575. See Upshur assume that when, as here, a state Constitu- | County v. Rich, 135 U. S. 467, 34 L. ed., tion sees fit to unite legislative and judicial | 196, 10 Sup. Ct. Rep. 651; Wallace v. Adams, powers in a single hand, there is nothing to hinder, so far as the Constitution of the United States is concerned. Dreyer v. Illinois, 187 U. S. 71, 83, 84, 47 L. ed. 79, 85, 23 Sup. Ct. Rep. 28; Winchester & S. R. Co. v. Com. 106 Va. 264, 268, 55 S. E. 692. We shall assume, as we have said, that some of the powers of the commission are judicial, and we shall assume, without decid

204* U. S. 415, 423, 51 L. ed. 547, 551, 27* Sup. Ct. Rep. 363. The decision upon them cannot be res judicata when a suit is brought. See Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047. And it does not matter what inquiries may have been made as a preliminary to the legisla tive act. Most legislation is preceded by