In the case of McChord v. L. & N. R. R. Co. (183 U. S., 483), followed by the case of L. & N. R. R. Co. v. Ky. (183 U. S., 503), the court sustains the doctrine announced, and held that before a court of equity can intervene, the administrative body must do some act that advances beyond the legislative function. (Reagan v. Farmers' Loan & Trust Co., 154 U. S., 362; Interstate Commerce Commission v. Railway Co., 167 U. S., 479.)
It is contended that the decision of the commission prohibiting the advance is a legislative act, and that under the decisions of the courts the order simply prohibiting the taking effect of a proposed advance could not be the subject of equitable cognizance. If this view is not correct, it is contended that the courts by overruling the order of the commission would in effect be putting in force a future rate. Under existing law, however, if the rate has taken effect its reasonableness is a matter of judicial review, and should the commission after protest and hearing declare it to be an unreasonable rate and set the same aside in its order, that decision is reviewable by the courts, as it presents a judicial question. The statute conferring upon the commission the power to determine whether an existing rate is reasonable or unreasonable has fixed the standard which must determine the jurisdiction of the administrative tribunal, and the courts have a right to review the act of the commission, with a view of ascertaining whether it has acted within the limitations of the power conferred upon it.
In the case of the State Corporation Commission of Virginia against Railways, decided by Mr. Justice Holmes November 30, 1908, speaking of the power of the commission to fix a rate and the appeal from its decision to the court of appeals of Virginia, the court 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 and changes existing conditions by making a new rule to be applied thereafter to all or some parts 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. * * *
"Proceedings legislative in nature are not proceedings in a court within the meaning of the Revised Statutes, section 720, no matter what may be the general or dominant character of the body in which they may take place. * * * That question depends not upon the character of the body, but upon the character of the proceedings. (Ex parte Va., 100; U. S., 339-348.) They are not a suit in which a writ of error would lie under Revised Statutes, section 709, and act of February 18, 1875. (C. 80 Stat., 318.) * * * Litigation can not arise until the moment of legislation is passed. * * * We may add 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."
The recent decision of the Supreme Court in the case of Public Service Commission v. Consolidated Gas Co. of New York, in which the opinion was delivered by Mr. Justice Peckham, in deciding what is known as the Eighty-Cent Gas Case from the southern district of New York, is instructive upon the question discussed in this objection.
In that case, the parties had gone to issue upon the question as to whether the rate of 80 cents enjoined by the court from taking effect was confiscatory. After deciding the case upon the merits in favor of the commission, the court was unwilling, upon the supposed effect of a rate which had never been in operation, to bar the parties of their right when the same became effective from asking the protection of the court against its practical results. The memorandum announcing the position of the court upon that question is as follows:
"As it may possibly be that a practical experience of the effect of the acts by actual operation under them might prevent the complainant from obtaining a fair and just return upon its property used in its business of supplying gas, the complainant, in that event, ought to have the opportunity of again presenting its case to the court. Therefore, the decree is reversed, with direction to dismiss the bill without prejudice."
This case simply illustrates the fact that the court was unwilling to decide the question finally until the rate contested had become effective. This was a suit involving a schedule of rates, and the question made by the record was that these rates would result in the confiscation of the property of the complainant in violation of the Federal Constitution. Where that question can be properly made, the courts have intervened upon clear proof and sustained their jurisdiction to prevent such a violation of the constitutional protection. In this case, although the court held that the evidence developed the fact that this allegation of the bill was not sustained, it was so reluctant to give effect to testimony as to what might be the effect of the rates before they were made operative that it preserved the rights of the parties by authorizing a new suit after the rate should become effective. Under the act to regulate commerce, such a constitutional question could hardly be practically raised, and the rights of the court to intervene must depend upon the limit placed upon the power of the commission by Congress in the enactment of the law, in fixing the standard which should guide the commission in its action.