299 U.S. 167
MOUNTAIN STATES POWER CO.
PUBLIC SERVICE COMMISSION OF MONTANA et al. (two cases).
Nos. 38, 39.
Argued Nov. 11, 1936.
Decided Dec. 7, 1936.
Appeals from the District Court of the United States for the District of Montana.
Messrs. Hance H. Cleland, of Olympia, Wash., and Elisha Hanson, of Washington, D.C., for appellant.
Mr. Albert H. Angstman, of Helena, Mont., for appellees. [299 U.S. 167, 168]
Mr. Justice McREYNOLDS delivered the opinion of the Court.
Each of these causes presents the same point of law.
Appellee, Public Service Commission of Montana, issued an order requiring the appellant Company to reduce its charges for electricity in Baker, No. 38; also another requiring reduction in Forsyth, No. 39. They were attacked as confiscatory by separate bills in the United States District Court. That court, three judges sitting, granted motions to dismiss for lack of jurisdiction. These direct appeals question its action.
Prior to May 14, 1934, paragraph (1), 24, Judicial Code, as amended ( U.S.C.A. tit. 28, 41(1), provided:
On that day the so-called Johnson Act, 48 Stat. c. 283, p. 775 (28 U. S.C.A. 41(1, 1a) became effective. Section 1 directs:
Section 3906, Revised Codes of Montana 1921:
Appellees maintain that under Porter v. Investors' Syndicate, 286 U.S. 461 , 52 S.Ct. 617, the inhibition of the Montana statute, against stay or injunction prior to final determination, plainly conflicts with the Federal Constitution and should be disregarded. Further, that when this is eliminated there are other statutory provisions which per- [299 U.S. 167, 170] mit the state courts to issue appropriate preliminary relief. Following Montana Power Co. v. Public Service Commission et al. (D.C.) 12 F.Supp. 946, the court below sustained this view.
While the inhibition has not been definitely sustained by the Supreme Court of the State against an attack based upon unconstitutionality, it was recognized without suggestion of disapproval in Billings Utility Co. v. Public Service Commission et al., 62 Mont. 21, 32, 203 P. 366; State ex rel. Public Service Commission et al. v. Great Northern Utilities Co., 86 Mont. 442, 446, 284 P. 772. And see State ex rel. Board of Railroad Commissioners v. District Court et al., 53 Mont. 229, 233, 163 P. 115.
Except for the Johnson Act, appellant's bills of complaint would state causes of action within the jurisdiction of the federal court. Obviously, also, the amendment relied upon has no application unless there is 'a plain, speedy and efficient remedy' in the state courts. And we cannot conclude that such remedy exists where, as here, a state statute definitely denying it has not been authoritatively condemned. In the circumstances it is impossible to know what position the courts of the State would take. A 'plain, speedy, and efficient remedy' cannot be predicated upon the problematical outcome of future consideration.
Porter v. Investors' Syndicate, supra, is not controlling. Section 3906, Montana Codes, was not there in question. And, while the opinion may suggest reasons for challenging its validity, the Montana courts have not spoken; until they do we cannot treat the statute as nonexistent. The essential remedy in the state courts does not emerge from the probability that the statute expressly prohibiting it may hereafter be declared ineffective. Pacific Telephone & Telegraph Co. v. Kuykendall et al., 265 U.S. 196 , 203-205, 44 S.Ct. 553, 556.
Mr. Justice STONE took no part in the consideration or decision of this case.