*228 hearings and investigations. But the effect in favor of the appellants would be proceedof the inquiry, and of the decision upon it, ings in court, and could not be enjoined; is determined by the nature of the act to while to confine the railroads to them for which the inquiry and decision lead up. A the assertion of their rights would be to judge sitting with a jury is not competent deprive them of a part of those rights. If to decide issues of fact; but matters of fact the railroads were required to take no active that are merely premises to a rule of law he steps until they could bring a writ of error may decide. He may find out for himself, from this court to the supreme court of apin whatever way seems best, whether a sup- peals after a final judgment, they would posed statute ever really was passed. In come here with the facts already found Pickering v. Barkley, Style, 132, merchants against them. But the determination as to were asked by the court to state their under- their rights turns almost wholly upon the standing as an aid to the decision of a de- facts to be found. Whether their property murrer. The nature of the final act deter- was taken unconstitutionally depends upmines the nature of the previous inquiry. on the valuation of the property, the income As the judge is bound to declare the law, to be derived from the proposed rate, and he must know or discover the facts that es- the proportion between the two,-pure mattablish the law. So, when the final act is ters of fact. When those are settled the legislative, the decision which induces it law is tolerably plain. All their constitucannot be judicial in the practical sense, al- tional rights, we repeat, depend upon what though the questions considered might be the facts are found to be. They are not to the same that would arise in the trial of a be forbidden to try those facts before a case. If a state Constitution should pro- court of their own choosing, if otherwise vide for a hearing before any law should be competent. "A state cannot tie up a citizen passed, and should declare that it should be of another state, having property within its a judicial proceeding in rem and the deci- territory invaded by unauthorized acts of sion binding upon all the world, it hardly is its own officers, to suits for redress in its to be supposed that the simple device could own courts." Reagan v. Farmers' Loan & make the constitutionality of the law res T. Co. 154 U. S. 362, 391, 38 L. ed. 1014, judicata, if it subsequently should be drawn 1021, 4 Inters. Com. Rep. 560, 14 Sup. Ct. in question before a court of the United Rep. 1047; Smyth v. Ames, 169 U. S. 466, States. And all that we have said would be 517, 42 L. ed. 819, 838, 18 Sup. Ct. Rep. 418. equally true if an appeal had been taken to See McNeill v. Southern R. Co. 202 U. S. the supreme court of appeals and it had con- 543, 50 L. ed. 1142, 26 Sup. Ct. Rep. 722; firmed the rate. Its action in doing so Ex parte Young, 209 U. S. 123, 165, 52 L. would not have been judicial, although the| ed. 714, 731, 13 L.R.A.(N.S.) 932, 28 Sup. questions debated by it might have been the Ct. Rep. 441. Other cases further illustratsame that might come before it as a court, ing*this point are Chicago & N. W. R. Co.and would have been discussed and passed v. Dey, 1 L.R.A. 744, 2 Inters. Com. Rep. upon by it in the same way that it would 325, 35 Fed. 866; Northern P. R. Co. v. deal with them if they arose afterwards in Keyes, 91 Fed. 47; Western U. Teleg. Co. a case properly so called. We gather that v. Myatt, 98 Fed. 335. these are the views of the supreme court of Our hesitation has been on the narrower appeals itself. Atlantic Coast Line R. Co. question whether the railroads, before they v. Com. 102 Va. 599, 621, 46 S. E. 911. resorted to the circuit court, should not They are implied in many cases in this and have taken the appeal allowed to them by other United States courts in which the en- the Virginia Constitution at the legislative forcement of rates has been enjoined, not-stage, so as to make it absolutely certain withstanding notice and hearing, and what counsel in this case call "litigation" in advance. Legislation cannot bolster itself up in that way. Litigation cannot arise until the moment of legislation is past. See Southern R. Co. v. Com. 107 Va. 771, 772, 60 S. E. 70. It appears to us that the most plausible objection to these bills is not the one most dwelt upon in argument, but that they were brought too soon. Our doubt is a narrow one and its limits should be understood. It seems to us clear that the appellees were not bound to wait for proceedings brought to enforce the rate and to punish them for departing from it. Those, we have assumed that the officials of the state would try to establish and enforce an unconstitutional rule. Considerations of comity and convenience have led this court ordinarily to decline to interfere by habeas corpus where the petitioner had open to him a writ of error to a higher court of a state, in cases where there was no merely logical reason for refusing the writ. The question is whether somewhat similar considerations ought not to have some weight here. We admit at once that they have not the same weight in this case. The question to be decided, we repeat, is legislative, whether a certain rule shall be made. Although the appeal is given as a right, it is not a rem *230 edy, properly so called. At that time no case exists. We should hesitate to say, as a general rule, that a right to resort to the courts could be made always to depend upon keeping a previous watch upon the bodies that make laws, and using every effort and all the machinery available to prevent unconstitutional laws from being passed. It might be said that a citizen has a right to assume that the Constitution will be respected, and that the very meaning of our system in giving the last word upon constitutional questions to the courts is that he may rest upon that assumption, and is not bound to be continually on the alert against covert or open attacks upon his rights in bodies that cannot finally take them away. It is a novel ground for denying a man a resort to the courts that he has not used due diligence to prevent a law from being passed. But this case hardly can be disposed of on purely general principles. The question that we are considering may be termed a question of equitable fitness or propriety, and must be answered on the particular facts. The establishment of railroad rates is not like a law that affects private persons, who may never have heard of it till it was passed. It is a matter of great interest, both to the railroads and to the public, and is watched by both with scrutinizing care. The railroads went into evidence before the commission. They very well might have taken the matter before the supreme court of appeals. No new evidence and no great additional expense would have been involved. that, when the rate is fixed, a bill against the commission to restrain the members from enforcing it will not be bad as an attempt to enjoin legislation or as a suit against a state, and will be the proper form of remedy. Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418; Chicago, M. & St. P. R. Co. v. Tompkins, 176 U. S. 167, 44 L. ed. 417, 20 Sup. Ct. Rep. 336; Hanley v. Kansas City Southern R. Co. 187 U. S. 617, 47 L. ed. 333, 23 Sup. Ct. Rep. 214; McNeill, v. Southern R. Co. supra; Mississippi R. Commission v. Illinois C. R. Co. 203 U. S.* 335, 51 L. ed. 209, 27 Sup. Ct. Rep. 90; Ex parte Young, 209 U. S. 123, 52 L. ed. 714, 13 L.R.A. (N.S.) 932, 28 Sup. Ct. Rep. 441. It is proper before closing to mention one decision that was relied upon by the appellees, and one or two other matters peculiar to the cases before the court. In McNeill v. Southern R. Co. 202 U. S. 543, 50 L. ed. 1142, 26 Sup. Ct. Rep. 722, the same moment was selected for bringing suit as in these cases, while an examination of the laws of North Carolina discloses that there were statutory provisions for appeal somewhat similar to those in the Virginia Constitution to which we now are referring. But, apart from other differences, in that case the ground of the decree was that the state commission was dealing with a subject-matter beyond its power; no regulation would have been valid (202 U. S. 561), and the considerations to which we now are giving weight naturally were not urged. But this decision suggests that in three of the present cases an equally potent constitutional bar is alleged against the proceedings of the commission. The Chesapeake & Ohio, the Norfolk & Western, and the South The state of Virginia has endeavored to impose the highest safeguards possible upon the exercise of the great power given to the State Corporation Commission, not only by the character of the members of that commission, but by making its decisions de-ern Railway Companies all set up general pendent upon the assent of the same historic body that is intrusted with the preservation of the most valued constitutional rights, if the railroads see fit to appeal. It seems to us only a just recognition of the solicitude with which their rights have been guarded, that they should make sure that the state, in its final legislative action, would not respect what they think their rights to be, before resorting to the courts of the United States. If the rate should be affirmed by the supreme court of appeals and the railroads still should regard it as confiscatory, it will be understood from what we have said that they will be at liberty then to renew their application to the circuit court, without fear of being met by a plea of res judicata. It will not be necessary to wait for a prosecution by the commission. We may add laws, alleged to be incorporated in their charters and to constitute contracts, providing that their tolls should not be diminished except under conditions of fact alleged not to exist. If the state has bound itself by contract not to cut down the rates as contemplated, there would seem to be no reason why the suit should not be entertained now. See Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 393, 38 L. ed. 1014, 1022, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047. But it would be premature and is unnecessary to decide whether the state has done so or not. No rate is irrevocably fixed by the state until the matter has been laid before the body having the last word. It may be that that body will adhere to the old rate, or will establish one that will not be open to the charge of violating the contracts al *232 *233 leged. The contracts alleged do not pro- | concerned, requiring it to appear before the hibit a certain reduction if the profits here- commission at a certain time and place and tofore realized have exceeded a certain show cause, if any it could, why the proamount. On the question of contract as on posed rate should not be prescribed. The that of confiscation, it is reasonable and judicial question involved on the return to proper that the evidence should be laid, in such rule was whether or not the contemthe first instance, before the body having plated rate was confiscatory, or otherwise the last legislative word. unjust or unreasonable, and in the hearing and disposition of this question the proceedings of the commission, as prescribed by law, were, in every respect, the same as those of any other judicial court of record. It issued, executed, and enforced its own writs and processes; it could issue and enforce writs of mandamus and injunction; it punished for contempt, and kept a complete record and docket of its proceedings; it summoned witnesses and compelled their attendance and the production of documents; it ruled upon the admissibility of evidence; it certified any exception to its rulings; and its judgments, decrees, and orders had the same force and effect as those of any other court of record in the state, and were enforced by its own proper processes. It was not subject to restraint by any other state court, and from any and every ruling or decision by it an appeal lay to the supreme court of appeals of the state, and was heard upon the record made for and certified by the commission, exactly as in the case of appeals from any other court; and, pending the decision of such appeal, the order appealed from might, by a supersedeas, be suspended in its operation. There is yet another difficulty in applying to these cases the comity which it is desirable if possible to apply. The Virginia statute of April 15, 1903, enacted to carry into effect the provision of the Constitution, requires, by § 34, certain, if not all, appeals to be taken and perfected within six months from the date of the order. Pollard's Code (Va.) 714. It may be that when an appeal is taken to the supreme court of appeals this section will be held to apply and the appeal be declared too late. We express no opinion upon the matter, which is for the state tribunals to decide, but simply notice a possibility. If the present bills should be dismissed, and then that possible conclusion reached, injustice might be done. As our decision does not go upon a denial of power to entertain the bills at the present stage, but upon our views as to what is the most proper and orderly course in cases of this sort when practicable, it seems to us that the bills should be retained for the present to await the result of the appeals if the companies see fit to take them. If the appeals are dismissed, as brought too late, the companies will be entitled to decrees. If they are entertained and the orders of the commission affirmed, the bills may be dismissed without prejudice and filed again. Decrees reversed. Mr. Justice Brewer is of the opinion that the decrees should be affirmed. Mr. Chief Justice Fuller, concurring in reversing the decrees, dissents from the opinion: I preface what I have to say with a sketch of the record in these cases, abbreviated from the brief of counsel. The Virginia State Corporation Commission was created and its functions, powers, duties, and the essentials of its procedure were prescribed in detail by the Constitution of the state as well as by statute. It was made primarily a judicial court of record of limited jurisdiction, possessing also certain special legislative and executive powers. When it proposed to make a change in a rate of a public service corporation, or otherwise to prescribe a new regulation therefor, the commission was required, sitting as a court, to issue its process, in the nature of a rule, against the corporation Not only do the Constitution and laws of Virginia make the commission a judicial court of record by clothing it with all the attributes of such a tribunal, but they expressly declare it a court, and require it to proceed only by due process of law and inquire into and determine every judicial question coming before it. It has repeatedly held itself to be a court and subject to all the obligations thereof, and the supreme court of appeals, the highest state judicial tribunal, has formally and expressly so held. When this court shall have, in the manner above indicated, fully heard all parties interested, and, proceeding by due process of law as to them, has judicially determined that the proposed rate or regulation is not confiscatory, nor otherwise unjust or unreasonable, then, but not until then, it is authorized by the Constitution and laws of Virginia to enter an order prescribing such rate or regulation, from which order an appeal lies to the supreme court of appeals, with, as has been said, the right of suspension by supersedeas pending the appeal. Assuming that the prescribing of the rate after it has been judicially determined to be reasonable is necessarily a legislative act, then the Constitution of the state expressly confers upon this commission the legislative | order was directed; but, before it had been power of prescribing a rate after it has accomplished, and on May 15, 1907, appeljudicially ascertained and decided it to be lees filed bills in the circuit court of the not below the limit of "reasonable." United States for the eastern district of On July 31, 1906, the State Corpora- Virginia, to enjoin the commission from ention Commission issued and caused to be forcing its order of April 27, 1907, or taking served a notice to the "steam railroad com- any other steps therein, and a restraining panies doing business in Virginia and all order was entered, enjoining the members of persons interested," that, at 12 o'clock noon, the commission and their clerk from further on November 1, 1906, at Richmond, the proceeding in the matter until a motion for commission would "hear and consider any an injunction pendente lite could be heard, objections which may be urged against aand requiring them to appear before the rule, regulation, order, or requirement of circuit judge in Asheville, North Carolina, the commission fixing and prescribing a on June 27, 1907, to show cause why such maximum rate of charge of 2 cents per injunction should not be granted. Appelmile for the transportation of passengers lants entered a special and limited appearover the line of any railroad company in ance, and filed their joint and separate anthis state, operated by steam, between swers to the rule, in which they denied the points within the state of Virginia." jurisdiction of the court. Accordingly, on November 1, 1906, the appellee companies appeared before the commission, and filed their answers in writing, setting forth why, in their opinion, the proposed 2-cent rate would be less than reasonable. The commission thereupon entered into a most thorough hearing of this question of the reasonableness of the proposed rate, in which hearing the appellee companies were represented by counsel and introduced elaborate evidence. No evidence was taken or considered, save publicly, in the open sessions of the commission, when appellees were given the fullest opportunity (of which they availed themselves) to be present, to introduce their own testimony, by witnesses and documents, to cross-examine opposing witnesses, to object to the introduction of witnesses or documents, and to except of record to any ruling whatever of the commission. No evidence was rejected which any railroad company offered. The hearing was continued for several months, and the case was not closed until the companies involved had formally announced, in open court, that they had nothing more to offer. On April 27, 1907, practically six months after the hearing began, the commission entered its order (which is the basis of appellees' complaint in this cause), accompanied with an elaborate written opinion, giving the grounds therefor. By this order certain passenger rates-in no case less than 2 cents per mile-were prescribed for the defendant railroad companies, to go into effect on July 1, 1907, the commission being of opinion, and so deciding, that the rates therein fixed were not confiscatory nor otherwise unjust or unreasonable to said companies. The appellee companies refused either to obey the order of the commission, or to appeal therefrom, and publication of the The cause having been heard on the rule and answers thereto, the circuit judge, on July 10, 1907, overruled the objection to the court's jurisdiction, and granted injunctions pendente lite, as prayed for. Thereupon the defendant Prentis filed his demurrer, based on substantially the same grounds as those assigned in the answer to the rule, and the three other defendants filed their joint and separate plea, setting up specifically that the commission is a court within the purview of 720 of the United States Revised Statutes (U. S. Comp. Stat. 1901, p. 581), and on September 10, 1907, by leave of court, all four of the defendants filed their joint and separate plea of res judicata. December 26, 1907, the court overruled the demurrer and both pleas, and the defendants declining to answer further, a final decree was, on that day, entered in each case, taking the bills pro confesso, and perpetuating the injunctions, with costs. Thereupon appeals were allowed and prosecuted from said final decrees. In my opinion, a preliminary objection is fatal to the maintenance of these bills. It appears on their face that the appellees did not avail themselves of the right of appeal to the court of appeals of Virginia, which was absolutely vested in them by the Constitution and laws of that commonwealth. Such an appeal would have brought up the question of the alleged unreasonableness of the designated rate, and appellees cannot assume that the decision of the commission would necessarily have been affirmed. reversed or changed to meet appellees' views, the whole ground of equity interposition would disappear. In such circumstances it is the settled rule that courts of equity will not interfere. The transaction must be complete, and jurisdiction cannot be rested on hypothesis. A fortiori this must be so where Federal courts are asked to interfere with the legislative, executive, or judicial If *236 *238 *237 74 29 SUPREME COURT REPORTER. acts of a state, unless some exceptional and imperative necessity is shown to exist, which cannot be asserted here. Moreover, this is demanded by comity, and what comity requires is as much required in courts of justice as in anything else. "Comity,'" said Mr. Justice Gray in the leading case of Hilton v. Guyot, 159 U. S. 163, 40 L. ed. 108, 16 Sup. Ct. Rep. 143, "in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legisdative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws." And, as applied to Federal interference with state acts, the observance of this rule of comity should be regarded as an obligation. It is recognized as such by § 720 of the Revised Statutes. By the Constitution of Virginia the commission is vested with legislative as well as judicial powers, and the validity of that union of powers has been repeatedly upheld by the highest judicial tribunal of that commonwealth, the matter being committed to the determination of the state. It seems equally true, that whether an adjudication by the commission, on notice and hearing, that proposed rates are reasonable, and not confiscatory, may lawfully be had prior to the legislative act of imposing the rates, is also a matter for state determination, and, at all events, that question should, in the first instance, be decided on appeal by the court of appeals. I cannot see why the reasonableness and justness of a rate may not be judicially inquired into and judicial. ly determined at the time of the fixing of the rate, as well as afterwards; but that and kindred questions should be tested as provided by this Constitution and these laws before the controversy is precipitated into a circuit court of the United States. Power grows by what it feeds on, and to hold that state railroad companies can take their chances for the fixing of rates in accordance with their views in a tribunal provided for that purpose by state Constitution and laws, and then, if dissatisfied with the result, decline to seek a review in the highest court of the state, though possessed of the absolute right to do so, and invoke the power of the Federal courts to put a stop to such proceedings, is, in my opinion, utterly inadmissible and of palpably dangerous tendency. OCT. TERM, Mr. Justice Harlan, also concurring in the reversal of the decree, but dissenting from the opinion of the court: I concur in the general observations of the Chief Justice, and, with him, dissent from the opinion of the court. But I go somewhat further than he has done. I hold that the circuit court was entirely without authority, by injunction, to stay the proceedings of the State Corporation Commission. By § 720 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 581), it is provided that "the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy." Such has been the law since 1793. In my judgment, the Virginia State Corporation Commission is, conclusively shown to be such by the proin every substantial sense, a court. It is visions of the Constitution and laws of Virginia, as interpreted by the highest court of Virginia and as summarized in the opinion of the Chief Justice. If the commission is a court, within the meaning of § 720, then the circuit court of the United States was wholly without authority to stay the proceedings of that tribunal by the writ of injunction. The circuit court could not grant the writ of injunction in face of the act of Congress expressly forbidding such action. No one will question the authority of Congress to prescribe the limits of the jurisdiction of the courts created by it. It is suggested that, under this view, there is danger that rights granted or secured by the Constitution may be violated by the judgment of the commission or by the judgment of the court of appeals of Virginia. A conclusive answer to this suggestion is that, if the final action of the commission, in any case of rate-making, amounts to confiscation of the property of the corporation whose rates are regulated, and therefore is to be held wanting in due process of law as taking private property for public use without just compensation, and if such action be sustained by the highest court of Virginia, then the way is plainly open to bring that question to this court upon writ of error. Rev. Stat. § 709, U. S. Comp. Stat. 1901, p. 575. In this way any Federal right, specially set up and denied by the state tribunals, can be adequately protected by the final judgment of this court. In my opinion, the decree should be reversed, with direction to dismiss the origi nal suit brought in the Federal court. *239 |