few of the assignments of error in order to lay down guides for future action in case, after changed conditions, the city should again seek to enforce its orders under the leave given by the decree below. The city complained because the court below had credited to the local exchange only 25 per cent of the revenues from long distance tolls received from calls originating in the city, but this was approved as sufficient upon evidence that it was more than the company had to pay to independent local lines, was an apportionment generally approved by state commissions throughout the country, and for the further reason that the city failed to adduce any satisfactory proof that the allowance was inadequate. So also an objection on the part of the city that the local company failed to show the profits enjoyed by a parent concern from which it rented appliances was put to one side because of evidence that the rental charges were less than what were demanded by independent companes and because of failure on the part of the city to show that they were unreasonably high. An issue as to the proper allowance for "going-concern" value was left without analysis because the company did not comply with a rule of court demanding a simple and condensed analysis of the voluminous testimony on which it rehed. Such light as the court shed on the general problem was confined to the statement that "whether going concern value should be considered and allowed at all in determining the base for ratemaking, and if allowed what the amount of it should be, depends upon the financial history of the company."

The remaining cases involving rate regulation related to other questions than fair value and fair return. In re Lincoln Gas & Electric Light Co., held that the authority of a district court to order the distribution among consumers of an excess over the statutory rate collected by the company and impounded to await the decision on the validity of the statutory rate (which was ultimately

14 Questio ́s of administrative power in rate regulation are dealt with in Thomas Porter Hardman "The Extent of the Finality of Commission's Rate Regulations,” 28 W. Va. L. Q. 111; Frederick Green, "The Ohio Valley Case." 4 ILL. L. Q) 44; and notes in 20 Mien L. Rrv 211 on Ohio Valley Water Co v Ben Avon Borough, 213 US 287, 40 Sup. Ct. 527 (1920), 19 Mien I. Rrv, 142, and in 70 U PA L. Rav 45 on the jurisdiction of a commission over private contracts.

sustained) was in no way impaired by the subsequent institution of a new proceeding to have the rates declared confiscatory, since the prior adjudication, though without prejudice, conclusively settled the dispute up to that time.

In Springfield Gas & Electric Co. v. Springfield1o a private company unsuccessfully adduced the Fourteenth Amendment against an Illinois statute which relieved municipal plants from the regulation visited on private companies. The difference between the objects of the private company and of the municipal enterprise, the one being in business for profit and the other for a more general public welfare, was said to be enough to exempt the latter from the control wielded over the former. The further complaint that it is improper for the municipal officers to prescribe the rates for the municipal plant, when private companies are subject to the control of strangers, was held to be equally untenable.1

Oklahoma Natural Gas Co. v. Oklahoma18 sanctioned a commission's order to refund certain percentages of charges made for natural gas when it appeared that the inadequacy of the service on which the order was predicated was due not to any natural impossibility but to the failure of the company to maintain sufficient pressure in the pipes, and that the defective service was a non-compliance with the obligation imposed in the franchise of the company. C. Use of Highways.

The underlying dispute in Bankers' Trust Co. v. Raton1 was whether a waterworks company had a perpetual franchise or one limited to twenty-five years. After holding that the company by accepting a twenty-five-year franchise from the city was estopped to claim one of indefinite duration from the state. Mr. Justice McKenna declared that "the term of the rights having expired, necessarily the rights granted expired, and the city cannot be

15

16

257 U. S., 42 Sup. Ct. 2 (1921).

257 U. S. -,42 Sup. Ct. 24 (1921). See 20 MICH. L. REV. 557.

17 The relation between municipal and state regulation is considered in Harold F. Kumm, "Legal Relations of City and State with Reference to Public Utility Regulation," 6 MINN. L. REV. 23. 140; and notes in 20 MICH. L. REV. 224 on rates fixed by municipality under power to regulate, and in 6 MINN. L. REV. 417 on increasing rates to municipalities fixed by contract. 18 258 U. S. -, 42 Sup. Ct. 287 (1922). Mr. Justice Clarke did not sit.

enjoined from requiring the removal of the company's system from the streets of the city.""

2. Relations Between Employers and Employees

An Arizona effort to restrict the use of injunctions in connection with labor disputes was declared unconstitutional by a five-to-four vote in Truax v. Corrigan.21 In addition to the clause forbidding the issue of injunctions in labor disputes except when necessary to prevent irreparable injury to property, the statute more explicitly forbade the use of such restraining orders to prohibit persons from ceasing to work "or from recommending, advising, or persuading others by peaceful means so to do," or from "attending at or near" a place of business "for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or to abstain from working; or from ceasing to patronize. or to employ any party to such dispute; or from recommending, advising, or persuading others by peaceful means so to do." On its face the statute merely prohibited injunctions against so-called

20 South Covington & C. St. Ry. Co. v. Newport, 259 U. S. —, 42 Sup. Ct. 418 (1922), held that an allegation that a city intends forcibly to remove and destroy transmission wires presents a substantial federal question, notwithstanding the statement in the answer that only judicial proceedings were contemplated. The court below was therefore ordered to assume jurisdiction.

For other discussions of powers and duties of public utilities, see Kenneth F. Burgess, "Compulsory Construction of New Lines of Railroad," 20 MICH. L. REV. 699; and notes in 20 MICH. L. REV. 802 and 6 MINN. L. REV. 81 on the privilege of ceasing operations, in 31 YALE L. J. 211 on the duty to furnish adequate gas, and in 1 Wis. L. REV. 415 on the obligation to repave streets.

21 257 U. S. -, 42 Sup. Ct. 124 (1921). See Everett P. Wheeler, "Injunctions in Labor Disputes and Decisions of Industrial Tribunlas," 8 A. B. A. JOUR. 506; and notes in 2 BOSTON U. L. REV. 124; 10 CALIF. L. REV. 237; 22 COLUM. L. Rev. 252; 7 CORNELL L. Q. 251; 20 MICH. L. Rev. 657; 8 Va. L. Rɛv. 374; 28 W. Va. L. Q. 144; and 31 YALE L. J. 408. Truax v. Corrigan is intimately connected with American Steel Foundries v. TriCity Central Trades Council, 257 U. S. .., 42 Sup. Ct. 72 (1922), 21 MICH. L. REV. 190, note 28, in which the Supreme Court announces its views of the proper common-law and equitable principles relating to picketing and injunctions to restrain it. This decision is discussed in 10 GEORGETOWN L. J. (No. 3) 94; 6 MINN. L. Rɛv. 252; 70 U. PA. L. REV. 102; 8 VA. L. Rev. 298; and 31 YALE L. J. 408.

peaceful picketing, and did not pronounce upon the legal or illegal quality of such picketing. By its terms it applied equally whether the party seeking an injunction were employer or employee, since it embraced "any case between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving or growing out of a dispute concerning terms or conditions of employment." The decision of the majority that the employer was denied the equal protection of the laws could not, therefore, be predicated on a discrimination against employers in favor of employees. In effect it is based on the fact that the plaintiff was discriminated against himself as employer in favor of himself in other capacities, since he might enjoin competitors but not employees.

The decision that the statute denies due process of law is based, not on the denial of the injunction, but on the assumption that the statute as interpreted and applied by the state court legalizes acts of the employees which in the opinion of the Supreme Court amount to an illegal conspiracy on chosen common-law principles. The majority point out that it is the function of the Supreme Court to analyze the facts conceded by demurrer and to "draw its own inferences as to their ultimate effect." They find that the picketing and persuasion of the defendants, though unattended by physical violence, nevertheless amounted to "moral coercion by illegal annoyance and obstruction," and they therefore hold such acts unlawful under approved common-law principles and so vicious that they cannot constitutionally be legalized by statute. As the chief justice puts it:

"It is true that no one has a vested right in any particular rule of the common law, but it is also true that the legislative power of a state can only be exerted in subordination to the fundamental principles of right and justice which the guaranty of due process in the Fourteenth Amendment is intended to preserve, and that a purely arbitrary or capricious exercise of that power whereby a wrongful and highly injurious invasion of property rights, as here, is practically sanctioned and the owner stripped of all real remedy, is wholly at variance with those principles.

"It is to be observed that this is not the mere case of a peaceful

and states have adopted different statutory provisions. *** The question in such cases is whether the moral coercion exercised over a stranger to the original controversy by steps in themselves legal becomes a legal wrong. But here the illegality of the means used is without doubt and fundamental. The means used are the libelous and abusive attacks on the plaintiffs' reputation, like attacks on their employees and customers, threats of such attacks on would-be customers, picketing and patrolling of the entrance to their place of business, and the consequent obstruction of free access thereto-all with the purpose of depriving plaintiffs of their business. To give operation to a statute whereby serious losses inflicted by such unlawful means are in effect made remediless, is, we think, to disregard fundamental rights of liberty and property and to deprive the persons suffering the loss of due process of law."

This part of the opinion, as already noted, is based on the assumption that the statute is not confined to withholding the remedy of injunction, but goes further and denies any remedy except for the libels. The exception is deemed insignificant, since "the tort here committed was not a mere libel of plaintiffs" and the libel "was not the cause of the injury" but "only one step or link in a conspiracy unlawfully to influence customers."

Though the majority opinion refrains from declaring that it would deny due process merely to withhold equitable relief, the three minority opinions rest in part on the proposition that even if the acts of the defendants might not constitutionally be legalized, they may be made immune from equitable process. Thus Mr. Justice Pitney says:

"Paragraph 1464 does not modify any substantive rule of law, but only restricts the processes of the courts of equity. Ordinary legal remedies remain; and I cannot believe that the use of the injunction in such cases-however important-is so essential to the right of acquiring, possessing and enjoying property that its restriction or elimination amounts to a deprivation of liberty or property without due process of law ***”

Possibly Mr. Justice Pitney does not mean to go further than this, since he points out that the statute did not affect the substantive rule of law; yet in the preceding paragraph he says that he has "no doubt that, without infringing the 'due process' clause, a state might