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relation of Alaska to the rest of the United States. It was not a description of a definite area of land or landed possession,” but of a political unit, governing and being governed as such.
This view is reinforced by other cases. In Binns v. United States, 194 U. S. 486, 490, 491, we said, through Mr. Justice Brewer, that we had held in Steamer Coquitlam v. United States that “Alaska is one of the Territories of the United States.” And also: “Nor can it be doubted that it is an organized Territory, for the act of May 17, 1884, 23 Stat. 24, entitled 'An act providing a civil government for Alaska,' provided: That the territory ceded to the United States by Russia by the treaty of March thirtieth, eighteen hundred and sixty-seven, and known as Alaska, shall constitute a civil and judicial district, the government of which shall be organized and administered as hereinafter provided."
In Binns y. United States the fact of a local legislature, or indeed any special form of government, was not considered as necessarily a feature of an organized Territory. “It must be remembered,” it was said, “that Congress in the government of the Territories as well as of the District of Columbia, has plenary power, save as controlled by the provisions of the Constitution, that the form of government it shall establish is not prescribed, and may not necessarily be the same in all the Territories.” There is much more in that case which might be quoted as establishing that the status of Alaska is that of an organized Territory. See also Rassmussen v. United States, 197 U. S. 516.
It is contended further by the Commission that railways were first authorized to be constructed in Alaska by the act passed May 14, 1898, 30 Stat. 409, c. 299, and that § 2 of the act provided as follows:
“That all charges for the transportation of freight and passengers on railroads in the District of Alaska shall be
printed and posted as required by section six of an Act to regulate commerce as amended on March second, eighteen hundred and eighty-nine, and such rates shall be subject to revision and modification by the Secretary of the Interior."
The argument is that this provision brings into force § 6 of the Interstate Commerce Act, and that, it is said, "under familiar rules of construction, excludes the application of every other section in the act," and that, besides, the provision that the rates on the Alaskan railroads should be subject to revision and modification by the Secretary of the Interior “negatived the jurisdiction of the Interstate Commerce Commission, even if Alaska was apprehended to be within section 1 of the Interstate Commerce Act."
These contentions do not seem to have been made in either the Supreme Court of the District or in the Court of Appeals. It was referred to very briefly as a circumstance to be considered in a majority report of the Interstate Commerce Commission in the ruling case, and more at length in the minority report. In the latter report important circumstances were pointed out. The Interstate Commerce law preceded that which gave authority to the Secretary of the Interior to revise and modify railroad rates, and the authority was confined to that special exercise, and, so far, it may be said to have amended the Interstate Commerce Act. At that time it had been held in the Maximum Rate Cases (162 U. S. 184; 167 U. S. 479, and 168 U. S. 144), that Congress had not conferred upon the Interstate Commerce Commission the legislative power to prescribe rates, either maximum, minimum or absolute. The power to prescribe a rate was conferred by the amendment of June 29, 1906, and that amendment extended the provisions of the act for the first time to intraterritorial commerce. The amendment made the act completely comprehensive of the whole subject and
entirely superseded the minor authority which had been conferred upon the Secretary of the Interior. As said by the minority of the Commission: “There is no suggestion of doubt that the ends of justice require as much the application of the same principle and regulation in Alaska as in New Mexico or Arizona." The two latter at the time this was said were Territories.
It is next contended by the Commission that "mandamus is not a proper proceeding to correct an error of law like that alleged in the petition.”
The general principle which controls the issue of a writ of mandamus is familiar. It can be issued to direct the performance of a ministerial act, but not to control discretion. It may be directed against a tribunal or one who acts in a judicial capacity to require it or him to proceed, the manner of doing so being left to its or his discretion. It is true there may be a jurisdiction to determine the possession of jurisdiction. Ex parte Harding, 219 U. S. 363. But the full doctrine of that case cannot be extended to administrative officers. The Interstate Commerce Commission is purely an administrative body. It is true it may exercise and must exercise quasi judicial duties, but its functions are defined and, in the main, explicitly directed by the act creating it. It may act of its own motion in certain instances—it may be petitioned to move by those having rights under the act. It may exercise judgment and discretion, and, it may be, cannot be controlled in either. But if it absolutely refuse to act, deny its power, from a misunderstanding of the law, it cannot be said to exercise discretion. Give it that latitude and yet give it the power to nullify its most essential duties, and how would its non-action be reviewed? The answer of the Commission is, by "a reversal by the tribunal of appeal.” And such a tribunal, it is intimated, is the United States Commerce Court.
But the proposition is plainly without merit, even al
Opinion of the Court.
though it be conceded, for the sake of argument, that the Commerce Court is by law vested with the exclusive power to review any and every act of the Commission taken in the exertion of the authority conferred upon it by statute; that is, to exclusively review, not only affirmative orders of the Commission granting relief, but also the action of that body in refusing to award relief on the ground that an applicant was not entitled to relief. This is so because the action of the Commission refusing to entertain a petition on the ground that its subjectmatter was not within the scope of the powers conferred upon it, would not be embraced within the hypothetical concessions thus made. A like view disposes of the cases relied upon in which it was decided that certain departmental orders were not susceptible of being reviewed by mandamus. We do not propose to review the cases, as we consider them to be plainly inapposite to the subject in hand.
In the case at bar the Commission refused to proceed at all, though the law required it to do so; and to so do as required—that is, to take jurisdiction, not in what manner to exercise it is the effect of the decree of the Court of Appeals, the order of the court being that a peremptory writ of mandamus be issued directing the Commission “to take jurisdiction of said cause and proceed therein as by law required.” In other words, to proceed to the merits of the controversy, at which point the Commission stopped because it was “constrained to hold," as it said, “upon authority of the decision recently announced in In the Matter of Jurisdiction Over Rail and Water Carriers Operating in Alaska, 19 I. C. C. Rep. 81, that the Commission is without jurisdiction to make the order sought by complainant,” the steamship company.
Argument for Washington Home for Incurables. 224 U. S.
WASHINGTON HOME FOR INCURABLES v. AMERICAN SECURITY AND TRUST COMPANY.
VERMILLION v. BALTIMORE AND OHIO RAIL
APPLICATIONS FOR THE ALLOWANCE OF AN APPEAL FROM
THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA, AND FOR A WRIT OF ERROR TO THE SAME.
Submitted April 15, 1912.-Decided April 29, 1912.
Section 299 of the Judicial Code of March 3, 1911, 36 Stat. 1087, c 231,
saving suits pending on appeal, does not give the right of appeal from judgments of the Court of Appeals of the District of Columbia in cases covered by the statutes repealed by the Judicial Code and in which the cause of action accrued prior to January 1, 1912, but
which were not decided by the Court of Appeals until after that date. Appeal from 40 Washington Law Reporter, 146, denied. Writ of error to review 40 Washington Law Reporter, 228, denied.
The facts, which involve the construction of the provisions of the Judicial Code of March 3, 1911, in regard to appeals to this court from the Court of Appeals of the District of Columbia, are stated in the opinion.
Mr. Henry B. F. Macfarland, Mr. Charles Cowles Tucker and Mr. J. Miller Kenyon for petitioner The Washington Home for Incurables:
The saving clause of the Judicial Code, $ 299, clearly preserves the right of appeal in this case. Its language would have to be wrested from its evident meaning to bar the appeal.
Giving to the language of $ 299 the consideration warranted by the familiar canons of construction of statutes will show that the intention, and the action of Congress,