acts of legislation to confer authority upon | The Secretary took the action conthe Secretary of the Interior to administer templated by this section and acted upon upon the Indian lands, and previous deci- the list forwarded by the commission. The sions of this court have shown its refusal roll was made up and distributed in quintuto sanction a judgment interfering with the plicate, as required by the statute. Notice Secretary where he acts within the powers was given to the commission, and land was conferred by law. But, as has been affirmed allotted to the relator, as provided by § 23 by this court in former decisions, there is of the act of July 1, 1902, supra. The relano place in our constitutional system for tor thereby acquired valuable rights, his the exercise of arbitrary power, and, if name was upon the rolls, the certificate of the Secretary has exceeded the authority his allotment of land was awarded to him. conferred upon him by law, then there is There is nothing in the statutes, as we read power in the courts to restore the status of them, which gave the Secretary power and the parties aggrieved by such unwarranted authority, without notice and hearing, to strike down the rights thus acquired. action. In the extended discussion which has been Nor do we think it is an answer to the had upon the meaning and extent of consti- petition for a writ of mandamus to say, as tutional protection against action without is earnestly contended by the counsel for the due process of law, it has always been recog-government, that Goldsby's case comes withnized that one who has acquired rights by an administrative or judicial proceeding cannot be deprived of them without notice and an opportunity to be heard. in the provisions of the act of July 1, 1902, establishing a citizenship court, as it appears in this record that he was one of the claimants whose judgment in the court of the Indian territory was annulled by the subsequent procedure in the citizenship court, leaving to Goldsby the remedy of appealing himself to that court, which, having failed to do, he has lost all right to enrol The right to be heard before property is taken or rights or privileges withdrawn which have been previously legally awarded is of the essence of due process of law. It is unnecessary to recite the decisions in which this principle has been repeatedly recog-ment, and therefore the decision of the nized. It is enough to say that its binding obligation has never been questioned in this court. The acts of Congress, as we have seen, have made provision that the commission shall certify from time to time to the Secretary of the Interior the lists upon which the names of persons found by the commission to be entitled to enrolment shall be placed. Upon the approval of the Secretary of the Interior these lists constitute a 263] part and parcel of the final *rolls of citizens of the Choctaw and Chickasaw tribes and Chickasaw freedmen, upon which allotments of lands and distribution of tribal property shall be made. The statute provides in § 30, act of July 1, 1902, supra: "Lists shall be made up and forwarded when contests of whatever character shall have been determined, and when there shall have been submitted to and approved by the Secretary of the Interior lists embracing names of all those lawfully entitled to enrolment, the rolls shall be deemed complete. The rolls so prepared shall be made in quintuplicate, one to be deposited with the Secretary of the Interior, one with the Commissioner of Indian Affairs, one with the principal chief of the Choctaw Nation, one with the governor of the Chickasaw Nation, and one to remain with the Commission to the Five Civilized Tribes." Secretary of March 4, 1907, *striking [264 him from the rolls, ought not to be interfered with, for the reason that the writ of mandamus, upon well-settled principles, ought not to issue to require the Secretary to do that which it now appears he never had any lawful authority to do. But we are of opinion that the facts now adduced are insufficient to require us to say that Goldsby could not establish a right to enrolment. The government contends, and we have held, that it does not appear in this case whether Goldsby's name was on the original or other tribal rolls, a fact essential to be known in order to determine whether his contention be sound that such an enrolment gave him the right to participate in the division of the funds and lands of the nation, irrespective of the action of the Dawes Commission, the court of the Indian territory, or the citizenship court. The question here involved concerns the right and authority of the Secretary of the Interior to take the action of March 4, 1907, in summarily striking the relator's name from the rolls. That is the question involved in this case. For the reasons given we think this action was unwarranted, and that the relator is entitled to be restored to the status he occupied before that order was made. The judgment of the Court of Appeals of the District of Columbia is affirmed. JAMES RUDOLPH GARFIELD, Secretary | and no appeal taken. Afterwards a deciof the Interior, Plff. in Err., sion by the commission, granting the appli cation of the Allisons for enrolment as citi V. UNITED STATES EX REL. IDA ALLI- zens by blood, was affirmed by the Depart SON. [No. 249.] JAMES RUDOLPH GARFIELD, Secretary of the Interior, Plff. in Err., V. ment of the Interior as of April 16, 1904. the rolls by the Department's order of Their names were summarily stricken from March 4, 1907. The cases are controlled by UNITED STATES EX REL. GEORGE A. the decision in Goldsby's Case. (See S. C. Reporter's ed. 264, 265.) These cases are governed by the decision in Garfield v. United States, ante, p. 168. [Nos. 249, 250.] Argued October 15, 16, 1908. Decided November 30, 1908. INDistrict of Columbia to review two judg N ERROR to the Court of Appeals of the ments which affirmed judgments of the Supreme Court of the District, granting writs of mandamus to compel the Secretary of the Interior to undo his action in summarily erasing certain names from the approved rolls of citizenship in the Cherokee Nation. Affirmed. See same case below, No. 249, 30 App. D. C. 190; No. 250, 30 App. D. C. 188. The facts are stated in the opinion. Assistant Attorney General Fowler and Attorney General Bonaparte argued the causes, and with Mr. William R. Harr, filed a brief for plaintiff in error. Mr. Charles H. Merillat argued the causes, and, with Messrs. Charles J. Kappler and James K. Jones, filed a brief for defendant in error. For contentions of counsel, see their briefs as reported in Garfield v. United States, ante, 168. Mr. Justice Day delivered the opinion of the court: These cases were argued and submitted with the Goldsby Case, No. 248, just decided. [Garfield v. United States, 211 U. S. 249, ante, 168, 29 Sup. Ct. Rep. 62]. In the case of George A. Allison, a patent had been issued for his lands and duly recorded. In the case of Ida Allison, an allotment certificate had been issued. The relators are Cherokees, but the legis lation herein involved is not different from that governing allotments to members of the Chickasaw Nation. The Allisons made application to the commission for admission to citizenship under the act of June 10, 1896 (29 Stat. at L. 321. chap. 398). Their applications were denied Judgments affirmed. HOME TELEPHONE & TELEGRAPH COMPANY, Appt., V. NOTE. On legislative power to regulate telephone rates-see note to Chesapeake & P. Teleph. Co. v. Manning, 46 L. ed. U. S. 1144. On the power of the legislature generally to fix tolls, rates, and prices-see note to Winchester & L. Turnp. Road Co. v. Croxton, 33 L.R.A. 177. On unconstitutional inequality or discrimination in state regulation of tolls or rates -see note to Cotting v. Godard, 46 L. ed. U. S. 92. On notice and hearing required to constitute due process of law-see notes to Kuntz v. Sumption, 2 L.R.A. 657; Chauvin v. Valiton, 3 L.R.A. 194; and Ulman v. Baltimore, 11 L.R.A. 225. the charter power to regulate telephone rates cannot be gathered from the provisions of Cal. act March 11, 1901 (Cal. Stat. 1901, p. 265), under which the telephone company obtained its franchise from the city, that A PPEAL from the Circuit Court of the United States for the Southern District of California to review a decree sustaining a demurrer to the bill in a suit to of municipal restrain the enforcement ordinances fixing telephone rates. Affirmed. Mr. Oscar A. Trippet argued the cause, and, with Mr. A. Haines, filed a brief for appellant: application for a franchise must be filed, and, in the discretion of the council, published, that the city is entitled to a percentage of the receipts, that the grantee must give bond to perform every term and condition of the franchise, that no condition shall be inserted which restricts competition, or favors one person against another, and that the franchise must be sold The California statute of 1901 and the to the highest bidder, especially since the provisions of the charter are to be read to1st section of the act provides that fran-gether as bearing upon the power of the chises "shall be granted upon the conditions in this act provided, and not other wise." Constitutional law due process of law -notice and hearing. 4. Municipal ordinances fixing telephone rates do not deny the due process of law guaranteed by U. S. Const., 14th Amend., because the section of the municipal charter under the authority of which they were enacted does not expressly provide for notice and hearing, where both notice and an opportunity to be heard were in fact accorded by ordinances providing that the rates be fixed at a meeting of the city council held in February in each year, and requiring the telephone company to furnish the city council annually in that month a statement of its receipts, expenditures, and property employed in the business. [For other cases, see Constitutional Law, 696773, in Digest Sup. Ct. 1908.] Constitutional power. law delegation of 5. No valid objection to intrusting a municipal council with the power to regulate telephone rates can be based upon the theory that the council is not an impartial tribunal because it is, in effect, made a judge in its own case, or that the judgment and sense of justice of the councilmen will be distorted by their dependence upon the will of the people which results from a provision in the city charter empowering 25 per cent of the electors to recall a member of the council and require again to stand for election. [For other cases, see Constitutional Law, III. b, 3, in Digest Sup. Ct. 1908.] Constitutional law of the laws. equal protection city of Los Angeles to grant a franchise for a telephone system, and to fix therein rates chargeable for telephone service during the term of the franchise; and ultimately, in the light of such power, as bearing on the question whether the ordinance embodies a contract as to rates. Los Angeles v. Davidson, 150 Cal. 63, 88 Pac. 42. The granting of a franchise is a legislative act. V. People ex rel. Dean Contra Costa County, 122 Cal. 422, 55 Pac. 131. In considering the question of power to contract, the principle that the right to compensation is an inseparable incident to every franchise affected with a public use is to be kept in view. Stockton Gas & Electric Co. V. San Joaquin County, 148 Cal. 321, 5 L.R.A. (N.S.) 174, 83 Pac. 54, 7 A. & E. Ann. Cas. 511; Truckee & T. Turnp. Road Co. v. Campbell, 44 Cal. 90; State v. Boston, C. & M. R. Co. 25 Vt. 433; State ex rel. St. Louis v. Laclede Gaslight Co. 102 Mo. 472, 22 Am. St. Rep. 789, 14 S. W. 974, 15 S. W. 383; Los Angeles City Water Co. v. Los Angeles, 88 Fed. 720. So vital is this right, and so absolutely incident is it, that even when it is left to continuous public regulation, unrestrained by contract, it comes under the guaranty of the 14th Amendment of the Constitution of the United States. Smyth v. Ames, 169 U. S. 466, 522-526, 42 L. ed. 819, 840, 842, 18 Sup. Ct. Rep. 418. 6. Municipal regulation of the rates which a telephone company may charge, on a lower scale than those prescribed for The power to agree upon maximum rates a competitor, does not necessarily deny is incident to the power to grant the franthe equal protection of the laws, since such chise, even though the governmental power competitor may bring its patrons into com- to regulate rates by enactments in the namunication with a larger number of per-ture of laws has not been conferred upon sons, dwelling in a more widely-extended the municipality. territory, and may render much more valuable service. [For other cases, see Constitutional Law, 343346, in Digest Sup. Ct. 1908.] [No. 173.] Noblesville v. Noblesville Gas & Improv. Co. 157 Ind. 162, 60 N. E. 1032. The procedure to sell, prescribed by the statute, is contractual at every stage. a. Because every franchise under the Argued October 21, 1908. Decided Novem- Broughton act contemplates a new public ber 30, 1908, utility. Omaha Water Co. v. Omaha, 12 L.R.A. (N.S.) 736, 77 C. C. A. 267, 147 Fed. 5. b. Because the statutory application for a franchise may embrace a proposal as to rates. c. Because, in exercising the discretion reposed in the council by the statute to pass on such application, the council is empowered to exercise its discretion on the rates proposed in it. d. Because the power to sell a franchise inevitably includes the power to prescribe maximum rates as a term of the franchise. California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306, 50 L. ed. 204, 26 Sup. Ct. Rep. 100. e. Because the discretion conferred by the Broughton act on the council, to define the character of the franchise to be advertised for sale, includes the power to fix maximum rates or charges under the franchise. f. Because the fact that the Broughton act required the legislative body of the municipality to fix the term for which the proposed franchise is to be granted, and to state such term in the advertisement for bids, is consistent with the prescribing of maximum rates in the sale and grant of the franchise, but inconsistent with any recognized principles for exercising continuing power by the city council to legislate as a political superior upon the rates from time to time during such term. It is not apparent how ultimate compensation for capital invested in or the cash price paid for the franchise can be provided, as justice and equity require, otherwise than by an agreement fixing maximum rates for the term. It would seem that the system of continuous rate fixing is inadequate to that end. For it is now to be considered as the settled law, that all fixing of rates by governmental authority, acting purely in the lawmaking capacity, proceeds upon the legal basis of "a fair return upon the reasonable value of the property at the time it is being used for the public." This is the utmost the holder of a franchise can expect. San Diego Land & Town Co. v. National City, 174 U. S. 739, 757, 43 L. ed. 1154, 1161, 19 Sup. Ct. Rep. 804; Smyth v. Ames, 169 U. S. 466, 544, 546, 547, 42 L. ed. 819, 848, 849, 18 Sup. Ct. Rep. 418; San Diego Land & Town Co. v. Jacper, 189 U. S. 439, 47 L. ed. 892, 23 Sup. Ct. Rep. 571; Redlands, L. & C. Domestic Water Co. v. Redlands, 121 Cal. 365, 53 Pac. 843; Spring Valley Waterworks v. San Francisco, 124 Fed. 574; Cotting v. Kansas City Stock Yards Co. (Cotting v. Godard) 183 U. S. 79, 86, 91, 46 L. ed. 92, 99, 101, 22 Sup. Ct. Rep. 30. The value of the plant and franchise themselves, whether taken separately, or as a whole, is affected by the character and duration of the franchise. Kennebec Water Dist. v. Waterville, 97 Me. 201, 60 L.R.A. 856, 54 Atl. 12; Bristol v. Bristol & W. Waterworks, 19 R. I. 413, 32 L.R.A. 740, 34 Atl. 359; Re Brooklyn, 143 N. Y. 596, 26 L.R.A. 270, 38 N. E. 983, affirmed in 166 U. S. 685, 41 L. ed. 1165, 17 Sup. Ct. Rep. 718. Every consideration shows that the Broughton act conferred power upon the municipalities of the state to contract as to rates for telephone service. Detroit v. Detroit Citizens' Street R. Co. 184 U. S. 368, 382, 46 L. ed. 592, 605, 22 Sup. Ct. Rep. 410; Vicksburg v. Vicksburg Waterworks Co. 206 U. S. 496, 508, 51 L. ed. 1155, 1160, 27 Sup. Ct. Rep. 762; Los Angeles v. Los Angeles City Water Co. 177 U. S. 558, 570, 44 L. ed. 886, 892, 20 Sup. Ct. Rep. 736, 88 Fed. 730; Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 3, 14, 43 L. ed. 341, 342, 347, 19 Sup. Ct. Rep. 77; Cleveland v. Cleveland City R. Co. 194 U. S. 517, 533, 534, 48 L. ed. 1102, 1107, 1108, 24 Sup. Ct. Rep. 756; Cleveland v. Cleveland Electric R. Co. 201 U. S. 529, 540, 541, 50 L. ed. 854, 859, 26 Sup. Ct. Rep. 513; Omaha Water Co. v. Omaha, supra; Santa Ana Water Co. v. San Buenaventura, 56 Fed. 339; State ex rel. St. Louis v. Laclede Gaslight Co. 102 Mo. 485, 22 Am. St. Rep. 789, 14 S. W. 974, 15 S. W. 383; Bessemer v. Bessemer Waterworks (Ala.) 44 So. 663. The charter expressly confers the power to fix and determine rates for a definite period. 7 Words & Phrases, p. 641; 3 Words & Phrases, p. 829; Detroit v. Detroit Citizens' Street R. Co. 184 U. S. 368, 383-385, 397, 46 L. ed. 592, 606, 607, 611, 22 Sup. Ct. Rep. 410. The fixing and determining of rates for a definite period is neither an abandonment or a suspension of the power to regulate by the exercise of it. Bessemer v. Bessemer Waterworks, supra; Vicksburg v. Vicksburg Waterworks Co. 206 U. S. 510, 51 L. ed. 1161, 27 Sup. Ct. Rep. 762; Stone v. Yazoo & M. Valley R. Co. 62 Miss. 607, 52 Am. Rep. 193; California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306, 50 L. ed. 204, 26 Sup. Ct. Rep. 100. In California the right of a municipality to make a contract for a term of years, controlling the further exercise of legislative or governmental power over its subject-matter during such term, is judicially established. McBean v. Fresno, 112 Cal. 161, 31 L.R.A. 794, 53 Am. St. Rep. 191, 44 Pac. 358; Contra Costa Water Co. v. Breed, 139 Cal. 432, The contemporaneous construction of the Broughton act and of the powers of the city under its charter are controlling. 73 Pac. 189; Doland v. Clark, 143 Cal. 176, | or assessment prescribed by a legislative 76 Pac. 958; Los Angeles City Water Co. | body having full authority over the subv. Los Angeles, 88 Fed. 720, 177 U. S. ject, and one imposed by a municipal corpo558, 44 L. ed. 886, 20 Sup. Ct. Rep. 736; ration acting under a limited and delegated Santa Ana Water v. San Buenaventura, authority; and the difference is still wider supra. between a legislative act making an assessment, and the act of mere functionaries whose authority is derived from municipal ordinances. Where the legislature has submitted these questions for inquiry to a commission, or to official persons to be appointed under municipal ordinances or regulations, the inquiry becomes in its nature judicial in such a sense that the property owner is entitled to a hearing, or to notice, or an opportunity to be heard. Railroad Comrs. v. Market Street R. Co. 132 Cal. 680, 64 Pac. 1065; McPherson v. Blacker, 146 U. S. 27, 36 L. ed. 874, 13 Sup. Ct. Rep. 3; Packard v. Richardson, 17 Mass. 143, 9 Am. Dec. 123; Hovey v. State, 119 Ind. 386, 21 N. E. 890; Woods v. Potter (Cal. App.) 95 Pac. 1126; Omaha Water Co. v. Omaha, 12 L.R.A. (N.S.) 736, 77 C. C. A. 267, 147 Fed. 1; Port Huron v. McCall, 46 Mich. 565, 10 N. W. 23; Detroit v. Detroit Citizens' Street R. Co. 184 U. S. 368-398, 46 L. ed. 592, 611, 22 Sup. Ct. Rep. 410. The fixing of rates to be charged by public utilities corporations has often been said to be judicial in its nature, when exercised by a board or municipality. Parsons v. District of Columbia, 170 U. S. 47, 51, 52, 42 L. ed. 944, 946, 18 Sup. Ct. Rep. 521; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663. The act authorizing the levying of an assessment must itself provide for notice; and it is of no avail that notice is given when not provided for by the act. San Diego Water Co. v. San Diego, 118 Stuart v. Palmer, supra; Kuntz v. SumpCal. 556, 38 L.R.A. 460, 62 Am. St. Rep. tion, 117 Ind. 1, 2 L.R.A. 655, 19 N. E. 474; 261, 50 Pac. 633; Spring Valley Water- Ferry v. Campbell, 110 Iowa, 290, 50 L.R.A. works Co. v. Schottler, 110 U. S. 347, 384, 92, 81 N. W. 604; Re Union College, 129 N. 28 L. ed. 173, 186, 4 Sup. Ct. Rep. 48; Chi-Y. 308, 29 N. E. 460; Remsen v. Wheeler, cago, M. & St. P. R. Co. v. Minnesota, 134 105 N. Y. 573, 12 N. E. 564; Violett v. U. S. 418, 33 L. ed. 970, 3 Inters. Com. Rep. | Alexandria, 92 Va. 561, 31 L.R.A. 382, 53 209, 10 Sup. Ct. Rep. 462, 702; Cleveland Am. St. Rep. 825, 23 S. E. 909; Re Grout, Gaslight & Coke Co. v. Cleveland, 71 Fed. 34 N. Y. Civ. Proc. Rep. 231, 93 N. Y. Supp. 614; Agua Pura Co. v. Las Vegas, 10 N. M. | 711; Mulligan v. Smith, 59 Cal. 230; Boor6, 50 L.R.A. 224, 60 Pac. 208; Louisville | man v. Santa Barbara, 65 Cal. 313, 4 Pac. & N. R. Co. v. McChord, 103 Fed. 224; Cum-31; Hutson v. Woodbridge Protection Dist. berland Teleph. & Teleg. Co. v. Railroad No. 1, 79 Cal. 90, 21 Pac. 435, 16 Pac. Commission, 156 Fed. 829; Mercantile Trust Co. v. Texas & P. R. Co. 51 Fed. 542; Budd v. New York, 143 U. S. 517, 36 L. ed. 247, 4 Inters. Com. Rep. 45, 12 Sup. Ct. Rep. 468; San Diego Land & Town Co. v. National City, 174 U. S. 739, 43 L. ed. 1154, 19 Sup. Ct. Rep. 804. The power to regulate rates of public utilities is akin to the power of taxation and of eminent domain, and the authorities concerning the constitutionality of acts of legislatures authorizing the levying of taxes and the condemnation of property are in point when construing the constitutionality of an act authorizing a municipality to fix rates. San Diego Water Co. v. San Diego, 118 Cal. 567, 38 L.R.A. 460, 62 Am. St. Rep. 261, 50 Pac. 633; Spring Valley Waterworks v. San Francisco, 124 Fed. 594; Consolidated Gas Co. v. New York, 157 Fed. 875; Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 168, 174, 41 L. ed. 392, 394, 17 Sup. Ct. Rep. 56. 549; Brandenstein v. Hoke, 101 Cal. 131, 35 The principle announced in the foregoing cases is applicable to a charter of a city. Savannah, F. & W. R. Co. v. Savannah, 96 Ga. 680, 23 S. E. 848. The mayor and council to whom it is claimed is referred the power to fix rates in the city of Los Angeles is not an impartial tribunal nor a freely deliberative body. Spring Valley Waterworks v. Schottler, 110 U. S. 347, 28 L. ed. 173, 4 Sup. Ct. Rep. 48; Cleveland Gaslight & Coke Co. v. Cleveland, 71 Fed. 612; Mills v. Chicago, 127 Fed. 734; Agua Pura Co. v. Las Vegas, supra. A classification by which the power to fix rates for a telephone company is given to a municipality is denying the equal protection of the law. Darcy v. San José, 104 Cal. 642, 38 Pac. 500; Pasadena v. Stimson, 91 Cal. 248, 27 There is a wide difference between a tax Pac. 604; State ex rel. Garner v. Missouri & |