Opinion — Keller v. Potomac Elec. Power Co.

KELLER ET AL., CONSTITUTING THE PUBLIC

UTILITIES COMMISSION OF THE DISTRICT OF

COLUMBIA, v. POTOMAC ELECTRIC POWER

COMPANY ET AL.

APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF

COLU MBIA.

No. 260. Argued February 26, 27, 1923.—Decided April 9, 1923.

1. In a proceeding brought by a public utility against the Public

Utilities Commission of the District of Columbia, in the Supreme

Court of the District, under par. 64 of § 8 of the Act o March

4, 1913, c. 150, 37 Stat. 974, the court is empowered, not merely

to decide legal questions and questions of fact as incident thereto,

but also to amend and, if need be, enlarge valuations, rates and

regulations established by the Commission, which the court finds

2. This is legislative, as distinguished from judicial, power. Id.

3. Under the power “to exercise exclusive legislation in all cases

whatsoever” over the District of Columbia, (Const. Art. I, § 8,

cl. 17,) Congress may vest this jurisdiction in the courts of the

District. P. 442.

4. But such power can not be conferred upon this Court; and the

provision made by the above act (par. 64) for appeals here from

the Court of Appeals of the District is, therefore, void. P. 443.

5. The failure of this provision of the act does not, however, affect

the other provisions of par. 64 of the act giving jurisdiction to

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KELLER v. POTOMAC ELEC. CO. 429

428 Argument for Appellants.

the courts of the District, in view of the probable intent of Congress

in this regard and the saving clause in par. 92. P. 444.

6. If the provisions of the above act (pars. 65 and 69) seeking to

limit the time within which recourse may be had to the courts

against orders of the Commission and to put the burden of proof

upon the party attacking them, are unconstitutional, the remainder

of the act would not be affected, in view of the saving clause of

par 92. P. 445.

Appeal to review 51 App. D. C. 77; 276 Fed. 327, dismissed.

AppeaL, under the law creating the Public Utilities

Commission of the District of Columbia, from an order

or decree of the Court of Appeals of the District reversing

a decree of the Supreme Court of the District, which dis-

missed the bill in a suit against the Commission, and

remanding the case for further proceedings.

Mr. Francis H. Stephens, with whom Mr. Conrad H.

Syme and Mr. George P. Barse were on the briefs, for

appellants.

This is a “case” within the meaning of § 2 of Art.

III of the Constitution. Smith v. Adams, 130 U.S. 167;

Osborne v. Bank, 9 Wheat. 738, 819; Ormsby v. Webb,

134 U. S. 47; Nashville v. Cooper, 6 Wall. 247; Inter-

state Commerce Commission v. Brimson, 154 U. 8S. 447;

La Abra Mining Co. v. United States, 175 U. S. 423;

Martin v. Hunter, 1 Wheat. 352; Cohens v. Virginia, 6

Wheat. 264, 407; Ex parte Milligan, 4 Wall. 133; Rail-

road Co. v. Mississippi, 102 U. S. 140; Ex parte Carll,

106 U. S. 521; Marbury v. Madison, 1 Cr. 138; Owings v.

Norwood’s Lessee, 5 Cr. 348; Wood Paper Co. v. Heft,

8 Wall. 336; Irvine v. Marshall, 20 How. 565.

Congress cannot impose a legislative or executive or

administrative duty, upon a court exercising the judicial

power mentioned in Art. III, § 1, of the Constitution.

Hayburn’s Case, 2 Dall. 408; United States v. Ferreira, 13

How. 40; Gordon v. United States, 2 Wall. 561; United

States v. Jones, 119 U. S. 477.

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430 OCTOBER TERM, 1922.

Argument for Appellants. 261 U.S.

It is not believed that the instant case falls within the

decision of Muskrat v. United States, 219 U. S. 246,

where the Court had under review the constitutionality

of a statute which conferred jurisdiction upon the Court

of Claims to examine and pass upon the constitutionality

of certain laws passed by Congress affecting the Cherokee

Indians and the right of appeal from that court to the

Supreme Court of the United States. Neither does it

fall within the decision of Gordon v. United States, 2

Wall. 561; 117 U. S. 699. This Court has on numerous

occasions clearly distinguished between functions of the

legislature (or a commission acting for the legislature)

and the functions of the courts, so far as concerns rate-

making and the valuations upon which rates are based.

Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362,

397; Knozville v. Knoxville Water Co., 212 U. S. 1, 8;

Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S.

287; Denver v. Denver Union Water Co., 246 U.S. 178;

Newton v. Consolidated Gas Co., 258 U.S. 165; Columbus

Ry. Co. v. Columbus, 249 U. S. 399; Rowland v. St. Louis

& San Francisco R. R. Co., 244 U. S. 106; Des Moines

Gas Co. v. Des Moines, 238 U.S. 153; Lincoln Gas Co. v.

Lincoln, 250 U. S. 256; Interstate Commerce Commission

v. Union Pacific R. R. Co., 222 U.S. 541.

Upon the nature and powers of the courts of the Dis-

trict of Columbia,*see: Const., Art. I, § 8, cl. 17; Rev.

Stats. D. C., § 760; United States v. Kendall, 5 Cr. C. C.

164; Ez parte Norvell, 20 D. C. 348; 9 Mack. 352; In re

Spencer, MacA. & M. 433; Noerr v. Brewer, 1 MacA. 507;

Cohens v. Virginia, 6 Wheat. 264, 424; Loughborough v.

Blake, 5 Wheat. 317; Embrey v. Palmer, 107 U. S. 3;

Deposit Bank v. Frankfort, 191 U.S..516; Moss v. United

States, 23 App. D. C. 483.

The case arises under the Constitution. Hollis v. Kutz,

255 U. S. 482; Columbus Ry. Co. v. Columbus, 249 U. S.

399; and other cases.

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KELLER v. POTOMAC ELEC. CO. 431

428 Argument for Appellee.

The case also arises under the laws of the United States.

There is nothing in the Constitution which requires a

final judgment as a necessary element for the exercise of

the appellate power of this Court. This is exemplified

by the legislation permitting this Court to review cases

from inferior federal courts entering interlocutory orders

granting injunctions. United States Fidelity Co. v. Bray,

225 U. S. 205; Denver v. New York Trust Co., 229 U.S.

123.

It is questionable whether this judgment is a final judg-

ment in form, but there cannot be much doubt that it was

a final judgment in substance. Grant v. Phoeniz Ins. Co.,

106 U. S. 429; Winthrop Iron Co. v. Meeker, 109 U. S.

180; Carondelet Canal Co. v. Louisiana, 233 U. S. 362;

Forgay v. Conrad, 6 How. 201.

Mr. John A. Garver, with whom Mr. S. R. Bowen and

Mr. John S. Barbour were on the briefs, for appellee.

The judgment appealed from was final. But this is

immaterial.

There is no provision in the Federal Constitution lim-

iting the appellate jurisdiction of this Court to appeals

from final judgments.

In the case of the Public Utilities Act, now under con-

sideration, Congress was of the opinion that any decision

made by the Commission, pursuant to the powers con-

ferred upon it, was of such great public interest and im-

portance that, in reviewing the exercise of those powers,

the decision of the Supreme Court of the District, and, in

case of an appeal to the District Court of Appeals, the

decision of that court, whether resulting in a final judg-

ment or not, might be carried by appeal to this Court by

either party in interest. Interstate Commerce Commis-

sion v. Baird, 194 U.S. 25.

This Court has not hesitated to review appeals from

interlocutory orders and decrees, where the right was

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Argument for Appellee. 261 U.S.

expressly conferred by statute. United States v. Balti-

more & Ohio R. R. Co., 225 U. S. 306; Jud. Code, § 210;

Act October 22, 1913, 38 Stat. 220.

An act creating a commission with regulatory powers

over public utilities must prescribe the principles and pro-

cedure to be observed by the commission in the exercise

of such powers. Otherwise, the statute will be invalid,

in attempting to confer discretionary legislative powers

upon the commission. Wichita R. R. Co. v. Public

Utilities Commission, 260 U. S. 48.

A regulatory act will be declared invalid unless it con-

tains provisions enabling the utilities to review in the

courts acts of the commission complained of as affecting

their property rights. Ohio Valley Water Co. v. Ben Avon

Borough, 253 U.S. 287; Saratoga Springs v. Saratoga Gas

Co., 191 N. Y. 123.

Under § 2 of Art. III of the Constitution, Congress

could not, in the present case, confer appellate jurisdiction

upon this Court, unless there is a constitutional question

involved or unless a judicial question arises under the act

itself, which the courts have power to consider. Only

justiciable questions can be considered by the Court under

Art. III.

Whether the case now before the Court involves a ques-

tion which Congress could require this Court to pass upon

is a question which is not confined to the jurisdiction of

this Court alone, but extends to the original jurisdiction

conferred upon the Supreme Court of the District, as well

as upon the Court of Appeals. If Congress had the power

to confer jurisdiction upon the District Supreme Court in

a case of this kind, it also had the power to provide for a

review by the District Court of Appeals, and by this

Court, of the decision of the lower court.

To deny this power and hold that the case at bar pre-

sents no justiciable controversy would be to invalidate the

entire act. For Congress clearly intended, as’an integral

KELLER v. POTOMAC ELEC. CO. 433

428 Argument for Appellee.

part of the act, to provide for a prompt review of the de-

terminations and orders of the Commission; and this in-

deed it was bound to do. Ohio Valley Water Co. v. Ben

Avon Borough, supra. The Court will adopt a construc-

tion of the act, if possible, which will sustain it. United

States v. Delaware & Hudson Co., 213 U.S. 366.

In valuing the property, the Commission acted judi-

cially. Under the Interstate Commerce Act, the commis-

sioners, in many instances, necessarily act in a judicial

capacity. Interstate Commerce Commission v. Cincin-

nati, etc., R. R. Co., 167 U.S. 479, 501.

Commissioners appointed to appraise property for pur-

poses of taxation or condemnation, or to assess benefits,

act judicially. Hagar v. Reclamation District, 111 U. S.

701; Central of Georgia Ry. Co. v. Wright, 207 U.S. 127;

Barhyte v. Shepherd, 35 N. Y. 238; Clark v. Norton, 49

N. Y. 243; Stuart v. Palmer, 74 N. Y. 183.

Under the District Utilities Act, the Commissioners

necessarily act in a judicial capacity in determining what

property is used and useful in the business of the utility,

in passing upon the numerous questions that arise in

ascertaining the value of such property for the purposes

of a rate base, such as organization and development ex-

penses entering into the capital account, depreciation,

working capital, franchise rights, the weight to be given

to the testimony of witnesses, etc. The present record is

full of instances where the Commissioners passed upon the

admissibility and effect of the evidence; and they entirely

disregarded the evidence of value furnished by the Com-

pany, on the ground that the Company valued the prop-

erty as of the time when the valuation was made, rather

than as of an earlier date which the Commission thought

would represent normal conditions.

The question of valuation is most important. The Dis-

trict Utilities Act, in express terms (par. 65), makes the

434 OCTOBER TERM, 1922.

Argument for Appellee. 261 U.S.

valuation of the property found by the Commission final

and conclusive, unless an appeal to the courts is taken by

the utility within 120 days after the valuation is made.

The right to judicial review of valuation is expressly

recognized by this Court. Kansas City Southern Ry. Co.

v. Interstate Commerce Commission, 252 U.S. 178; Ohio

Valley Water Co. v. Ben Avon Borough, 253 U. S. 287.

Official appraisal of property is universally recognized

as constituting a case reviewable by the courts. In the

assessment of property for purposes of taxation or benefit,

the owner must be given an opportunity to be heard.

Failure to afford him such an opportunity invalidates the

assessment, as it deprives the owner of his property with-

out due process of law. Davidson v. New Orleans, 96

U. S. 97, 105, 107; Hagar v. Reclamation District, 111

U.S. 701, 710; Security Trust Co. v. Lexington, 203 U. S.

323, 333; Jewell v. Van Steenburgh, 58 N. Y. 85, 90-1;

Stuart v. Palmer, 74 N. Y. 183.

A tax statute for the assessment of property, which

does not provide for notice to the owner, is unconstitu-

tional and void. Remsen v. Wheeler, 105 N. Y. 573, 579.

The right to be heard upon the valuation of property

about to be taken, in whole or in part, for the public ben-

efit, being thus secured by the Constitution, it necessarily

follows that the courts have the power and duty to pro-

tect it; and, in the protection of this right, it can make

no difference whether all of the owner’s property is taken

under the power of eminent domain, or whether only a

small portion of it is taken, as in the case of a general tax

or in fixing a limit upon the return of property devoted to

the public use.

This right of judicial review, in the case of the official

valuation of property, was expressly recognized by this

Court in Hagar v. Reclamation District, 111 U. S. 701.

Congress has power in the exercise of its express powers

to invoke the aid of the courts.

KELLER v. POTOMAC ELEC. CO. 435

428 Argument for Appellee.

Although Art. III of the Constitution limits the juris-

diction of the federal courts, this limitation is subject to

the power of Congress to enlarge the jurisdiction, where

such enlargement may reasonably be required to enable

Congress to exercise the express powers conferred upon it

by the Constitution. Interstate Commerce Commission

v. Brimson, 154 U. S. 447; Interstate Commerce Com-

mission v. Baird, 194 U. S. 25, 38; Ellis v. Interstate

Commerce Commission, 237 U. S. 434.

Clause 17, of § 8, of Art. I, of the Constitution, em-

powers Congress to exercise exclusive jurisdiction, “in

all cases whatsoever”, over the District of Columbia.

Clause 18 of the same section confers power upon Con-

gress “to make all laws which may be necessary and

proper for carrying into execution the foregoing powers

and all other powers vested by this Constitution in the

Government of the United States or in any department

or officer thereof.”

Congress thus has just as complete power to regulate

the public utilities in the District of Columbia as it has

to regulate interstate commerce. Indeed, its power in

the former respect is clearer, because it is not involved in

the conflict which so frequently arises between the fed-

eral and state authorities in questions arising under the

regulation of commerce.

The power of Congress to confer jurisdiction, in cases

where the limitations contained in Art. III of the Consti-

tution might exclude such jurisdiction, was distinctly

recognized by this Court in the Brimson Case, supra. The

power to require the production of books and papers was

one which the Court thought was essential to the effective

execution of the statute and which might in any particular

case result in a difference of opinion or dispute between

the Commission and the persons affected by their ruling.

The Court recognized that the action of Congress must be

regarded as lawful, “unless the incompatibility between

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Opinion of the Court. 261 U.S.

the Constitution and the act of Congress is clear and

strong.”

The argument in the Brimson Case is peculiarly ap-

plicable to the case at bar. The District Utilities Act con-

fers broader powers upon the Commission than are con-

ferred by the Interstate Commerce Act; and it was a mat-

ter of importance both to the utilities in the District and

to the general public that provision should be made for

the prompt disposition of any disputes growing out of the

exercise of the powers conferred upon the Commission.

Under this act, no question is of more vital concern, both

to the public and to the utilities, than the value of the

property upon which the charge for the service is based.

Upon the correct ascertainment of that value depends

the power of the company to serve the public properly;

and only upon such a basis can the public expect to re-

ceive adequate service. Knozville v. Knoxville Water

Co., 212 U.S. 1.

The decision in the Brimson Case was followed in the

Baird and Ellis Cases, supra.

This Court has jurisdiction to hear the appeal herein

now pending before it.

Mr. Cur Justice Tart delivered the opinion of the

Court.

This is an appeal from the Court of Appeals of the

District of Columbia. It is an appeal provided for in

paragraph 64 of the law creating the Public Utilities

Commission of the District. The law is § 8 of an Act

approved March 4, 1913, making appropriations for the

District for the year ending June 30, 1914. 37 Stat.

938, 974. Paragraph 7 requires the Commission created

thereby to value the property of every public utility

within the District actually used and useful for the con-

venience of the public at the fair value thereof at the

KELLER v. POTOMAC ELEC. CO. 437

428 Opinion of the Court.

time of the valuation. The Commission, after a public

hearing, fixed the value of the Potomac Electric Power

Company at $11,231,170.43. The company then filed a

bill in equity in the Supreme Court of the District against

the Commission, seeking to enjoin the order as unlawful,

unreasonable and inadequate under paragraph 64 of the

law. It made a party defendant to-the bill the Washing-

ton Railway and Electric Company, because it is the sole

stockholder of the Power Company.

The Supreme Court of the District upheld the findings

of the Commission in every particular and dismissed the

bill. From this decree, the company appealed to the

Court of Appeals of the District, on the ground that the

Commission and the Supreme Court had found the value

as of July 1, 1914, whereas the time of the valuation was

December 31, 1916, and between the two dates there had

been a sharp rise in values for which the company was

not made any allowance in the valuation, and also because

under the circumstances of the case, and the challenge by

the company that the valuation was arbitrary, the court

should disregard the prima facie effect given by the stat-

ute to the findings of the Commission, and exercise its

own independent judgment as to both law and facts so

far as it was necessary to determine whether the use of

such valuation as a basis of rate making would result in

confiscation. The Court of Appeals-sustained the appeal

on these grounds and remanded the cause for further pro-

ceedings not inconsistent with its opinion.

When this appeal was opened by counsel at the bar we

declined to hear the merits, and postponed the case to

give both sides an opportunity to prepare to discuss the

questions, first, whether Congress had the constitutional

power to vest the District Courts and this Court with

jurisdiction to review the proceedings of the Commission,

and, second, whether if the power existed, the appeal to

this Court was only intended to apply to a final decree,

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438 OCTOBER TERM, 1922.

Opinion of the Court. 261 U. 8.

and finally whether this was such a decree. Briefs have

accordingly been filed and we have had an oral argument

upon these questions.

The Public Utilities Law is a very comprehensive one.

It applies to all public utilities in the District, except

steam railways and steamboat lines. It creates a Com-

mission to supervise and regulate them in the matter of

rates, tolls, charges, service, joint rates, and other matters

of interest to the public. It directs investigation into the

financial history and affairs of each utility and its valua-

tion at a fair value as of the time of valuation. It re-

quires a public hearing on this subject. It also provides

that while the utility may fix a schedule of rates, not

exceeding the lawful rates at the passage of the act, which

it must publish, the Commission may of its own initiative,

or upon the complaint of another, or indeed of the utility

itself, investigate the reasonableness, lawfulness and ade-

quacy of the rate or service and may change the same.

The utility must then adopt the change and publish its

schedules accordingly. The law further provides that in

such proceedings, the utility shall have notice and a hear-

ing, that a stenographic record of the proceedings shall be

kept and produced by the Commission in any court pro-

ceeding thereafter instituted to question the validity, rea-

sonableness or adequacy of the action of the Commission.

The relevant part of paragraph 64 is given in full in the

margin.’ In short, it enables the Commission by action

.“ Par. 64. That if at any time the commission shall be in doubt

of the elements of value to be by them considered in arriving at the

true valuation under the provisions of this section, they are author-

ized and empowered to institute a proceeding in equity in the Su-

preme Court of the District of Columbia petitioning said court to

instruct them as to the element or elements of value to be by them

considered as aforesaid, and the particular utility under valuation

at the time shall be made party defendant in said action.

That any public utility and any person or corporation interest [ed]

being dissatisfied with any order or decision of the commission fixing

‘ ”y

KELLER v. POTOMAC ELEC. CO. 439

428 Opinion of the Court.

in equity to invoke the advice of the District Supreme

Court upon the elements in value to be by it considered

in arriving at a true valuation of the property of a utility.

It further grants to any utility or any person or corporate

interest dissatisfied with any valuation, rate or rates or

regulation or requirement, act, service or other thing fixed

by the Commission the right to begin a proceeding in

equity in the Supreme Court, to vacate, set aside or mod-

ify the order on the ground that the valuation, rate, regu-

lation, or requirement is unlawful, inadequate or unrea-

sonable. Paragraph 65 limits the time within which such

a proceeding to vacate, set aside or amend the order of

any valuation, rate or rates, tolls, charges, schedules, joint rate or

rates, or regulation, requirement, act, service or other thing com-

plained of may commence a proceeding in equify in the Supreme

Court of the District of Columbia against the commission, as defend-

ants, to vacate, set aside, or modify any such decision or order on the

ground that the valuation, rate or rates, tolls, charges, schedules, joint

rate or rates, or regulation, requirement, act, service or other thing

complained of fixed in such order is unlawful, inadequate, or unrea-

sonable. The answer of the commission, on any such action being

instituted against it, or the answer of any public utility on any such

action being commenced by said commission against it, shall be filed

within ten days, whereupon said proceeding shall be at issue and

stand ready for trial.

All such proceedings shall have precedence over any civil cause of

a different nature pending in such court, and the Supreme Court of

the District of Columbia shall always be deemed open for the trial

thereof, and the same shall be tried and determined as are equity

proceedings in said court. Any party, including said commission,

may appeal from the order or decree of said court to the Court of

Appeals of the District of Columbia, and therefrom to the Supreme

Court of the United States, which shall thereupon have and take

jurisdiction in every such appeal. Pending the decision of said appeal

the commission may suspend the decision or order appealed from for

such a period as it may deem fair and reasonable under the circum-

stances: Provided, That no appeal, unless the court or the commis-

sion shall so order, shall operate to stay any order of the com-

mission. .

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440 OCTOBER TERM, 1922.

Opinion of the Court. 261 U.S.

the Commission may be begun to 120 days, and thereafter

the right to appeal or of recourse to the courts shall ter-

minate absolutely. Paragraph 67 provides that if new

evidence is introduced by the plaintiff different from that

offered in the hearing before the Commission, unless the

parties otherwise agree, the new evidence shall be sent to

the Commission to enable it to change its order if it sees

fit, and then the court shall proceed to consider the appeal

either on the original order or the changed order as the

case may be. Paragraph 69 provides that in such pro-

ceedings, the burden of proof is upon the party adverse to

the Commission to show by clear and satisfactory evi-

dence that the determination, requirement, direction or

order of the Commission complained of is inadequate, un-

reasonable or unlawful as the case may be.

What is the nature of the power thus conferred on the

District Supreme Court? Is it judicial or is it legislative?

Is the court to pass solely on questions of law, and look

to the facts only to decide what are the questions of law

really arising, or to consider whether there was any show-

ing of facts before the Commission upon which, as a mat-

ter of law, its finding can be justified? Or has it the

power, in this equitable proceeding to review the exercise

of discretion by the Commission and itself raise or lower

valuations, rates, or restrict or expand orders as to service?

Has it the power to make the order the Commission

should have made? If it has, then the court is to exer-

cise legislative power in that it will be laying down new

rules, to change present conditions and to guide future

action and is not confined to definition and protection of

existing rights. In Prentis v. Atlantic Coast Line Co.,

211 U. S. 210, 226, we said:

“A judicial inquiry investigates, declares and enforces

liabilities 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

KELLER v. POTOMAC ELEC. CO. 441

428 Opinion of the Court.

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. . . .”

Under the law, the proceeding in the District Supreme

Court is of a very special character. The court may be

called in to advise the Commission as to the elements of

value to be by it considered, at any stage of the hearing

before the Commission. To modify or amend a valuation,

or a rate, or a regulation of the Commission as inadequate,

as the court is authorized to do, seems to us necessarily to

import the power to increase the valuation, or rate, or

to make a regulation more comprehensive, and to consider

the evidence before it for this purpose. In other words,

the proceeding in court is an appeal from the action of

the Commission in the chancery sense. In the briefs of

counsel for the Commission it is so termed. The form

which the bill filed is given by the Electric Company is

that of a series of exceptions to the rulings of the court

on the evidence and at every stage of the hearing and

finally to the conclusions of fact as against the weight of

the evidence. Paragraph 69 is significant in its indication

that issues of fact as to inadequacy of the action by the

Commission are to be passed on by the court.

Counsel seek to establish an analogy between the juris-

diction of the District Supreme Court to review the action

of the Commission, and that conferred on, and exercised

by, the Federal District Courts in respect of the orders

of the Interstate Commerce Commission. We think,

however, that the analogy fails. The act for the creation

of the Commerce Court provided (Judicial Code, § 207)

that it should have the jurisdiction of the then Circuit

Courts of all cases brought to enjoin, set aside or annul

or suspend in whole or in part any order of the Commis-

sion. When the Commerce Court was abolished by the

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442 OCTOBER TERM, 1922.

Opinion of the Court. 261 U.S.

Act of October 22, 1913, 38 Stat. 219, this jurisdiction

was conferred on the several District Courts of the United

States. This permits these Courts to consider all rele-

vant questions of constitutional power or right and all

pertinent questions whether the administrative order is

within the statutory authority, or is an attempted exer-

cise of it so unreasonable as not to be within it; but these

are questions of law only. Interstate Commerce Com-

mission v. Illinois Central R. R. Co., 215 U. 8. 452, 470.

Of course the consideration and decision of questions of

law may involve a consideration of controverted facts to

determine what the question of law is, but it is settled

that any finding of fact by the Commission if supported

by evidence is final and conclusive on the courts. /nter-

state Commerce Commission v. Union Pacific R. R. Co.,

222 U. S. 541, 547. A similar distinction exists between

the jurisdiction here conferred and that vested in circuit

courts of appeals in mer to proceedings before the

Trade Commission. C. 311, § 5, 38 Stat. 719. The lan-

guage of the act under discussion is much wider than that

of the Interstate Commerce Act or of the Federal Trade

Commission provisions. It brings the court much more

intimately into the legislative machinery for fixing rates

than does the Interstate Commerce Act. We can not

escape the conclusion that Congress intended that the

court shall revise the legislative discretion of the Com-

mission by considering the evidence and full record of the

case and entering the order it deems the Commission

ought to have made.

Can the Congress vest such jurisdiction in the courts

of the District of Columbia? By the Constitution, clause

17, § 8, Article I, Congress is given power “ To exercise

exclusive legislation in all cases whatsoever, over” the

District of Columbia. This means that as to the District

Congress possesses not only the power which belongs to

it in respect of territory within a State but the power of

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KELLER v. POTOMAC ELEC. CO. 443

428 Opinion of the Court.

the State as well. In other words, it possesses a dual

authority over the District and may clothe the courts of

the District not only with the jurisdiction and powers of

federal courts in the several States but with such au-

thority as a State may confer on her courts. Kendall v.

United States, 12 Pet. 524,619. Instances in which con-

gressional enactments have been sustained which con-

ferred powers and placed duties on the courts of the Dis-

trict of an exceptional and advisory character are found

in Butterworth v. Hoe, 112 U. S. 50, 60; United States

v. Duell, 172 U. S. 576, and Baldwin Co. v. Howard Co.,

256 U. S. 35. Subject to the guaranties of personal lib-

erty in the amendments and in the original Constitution,

Congress has as much power to vest courts of the District

with a variety of jurisdiction and powers as a state legis-

lature has in conferring jurisdiction on its courts. In

Prentis v. Atlantic Coast Line Co., supra, we held that

when “a state constitution sees fit to unite legislative and

judicial powers in a single hand, there is nothing to hinder

so far as the Constitution of the United States is con-

cerned.” (211 U.S. 225.) Dreyer v. Illinois, 187 U. S.

71, 83, 84.

It follows that the provisions in the law for a review of

the Commission’s proceedings by the Supreme Court

of the District and for an appeal to the District Court of

Appeals are valid. A different question arises, however,

when we come to consider the validity of the provision

for appeal to this Court. It is contained in the following

sentence in paragraph 64:

“Any party, including said commission, may appeal

from the order or decree of said court to the Court of

Appeals of the District of Columbia, and therefrom to

the Supreme Court of the United States, which shall

thereupon have and take jurisdiction in every such

appeal.”

The court proceedings to review the orders of the Com-

mission authorized by paragraph 64 are expressly required

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Opinion of the Court. 261 U.S.

to conform to equity procedure. In that procedure, an

appeal brings up the whole record and the appellate court

is authorized to review the evidence and make such order

or decree as the court of first instance ought to have made,

giving proper weight to the findings on disputed issues of

fact which should be accorded to a tribunal which heard

the witnesses. This Court is, therefore, given jurisdic-

tion to review the entire record and to make the order or

decree which the Commission and the District Courts

should have made.

Such legislative or administrative jurisdiction, it is well

settled can not be conferred on this Court either directly

or by appeal. The latest and fullest authority upon this

point is to be found in the opinion of Mr. Justice Day,

speaking for the Court in Muskrat v. United States, 219

U. S. 346. The principle there recognized and enforced

on reason and authority is that the jurisdiction of this

Court and of the inferior courts of the United States

ordained and established by Congress under and by virtue

of the third article of the Constitution is limited to cases

and controversies in such form that the judicial power is

capable of acting on them and does not extend to an issue

of constitutional law framed by Congress for the purpose

of invoking the advice of this Court without real parties

or a real case, or to administrative or legislative issues or

controversies. Hayburn’s Case, 2 Dall. 410, note; United

States v. Ferreira, 13 How. 40, 52; Ex parte Siebold, 100

U. S. 371, 398; Gordon v. United States, 117 U. 8. 697;

Baltimore & Ohio R. R. Co. v. Interstate Commerce Com-

mission, 215 U. S. 216.

The fact that the appeal to this Court is invalid does

not, however, render paragraph 64 invalid as a whole.

Paragraph 92 of the law declares each paragraph to be

independent and directs that the holding of any para-

graph or any part of it invalid shall not affect the validity

of the rest. Moreover, we think Congress would have

.

KELLER v. POTOMAC ELEC. CO. 445

428 Opinion of the Court.

given the appeals to the courts of the District even if it

had known that the appeal to this Court could not stand.

Some question has been made as to the validity of

paragraph 65, which forbids all recourse to courts to set

aside, vacate and amend the orders of the Commission

after 120 days, and of paragraph 69, which puts the bur-

den upon the party adverse to the Commission to show by

clear and satisfactory evidence the inadequacy, unreason-

ableness or unlawfulness of the order complained of. It

is suggested that this deprives the public utility of its con-

stitutional right to have the independent judgment of a

court on the question of the confiscatory character of an

order and so brings the whole law within the inhibition of

the case of Ohio Valley Water Co. v. Ben Avon Borough,

253 U. S. 287. It is enough to say that even if paragraphs

65 and 69 were invalid, the whole act would not fail in

view of paragraph 92 already referred to. It will be time

enough to consider the validity of those sections when it

is sought to apply them to bar or limit an independent

judicial proceeding raising the question whether a rate or

other requirement of the Commission is confiscatory.

Our conclusion that the provision for appeal to this Court

in paragraph 64 is invalid makes it unnecessary to de-

cide whether the appeal must be from a final decree, or

whether the decree of the Court of Appeals was final.

Appeal dismissed.

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