I concur in the foregoing opinion but on one point I would go further than the reasonable implications inhering in the opinion.
It is my view that in the light of the strange doctrines that lie slumbering in the opinion in the case of Mountain StatesPower Co. v. Public Service Com., 299 U.S. 167,57 Sup. Ct. 168, 81 L. Ed. 99, the opinion of the United States Supreme Court in the Bruce Case, even if unanimous for affirmance, would not be stare decisis or binding on this court. The United States Supreme Court had, in the case of Porter v. Investors'Syndicate, 286 U.S. 461, 52 Sup. Ct. 617, 76 L. Ed. 1226, definitely held that a statute denying a stay or injunction for the enforcement of an order during the time while proceedings were pending to have the validity of the order judicially determined was clearly unconstitutional. In the MountainStates *Page 389 Power Company Case, supra, it held that its determination in the Porter Case was not an authoritative condemnation of the statute, and that it would not treat such a statute as non-existent until the state courts had spoken. It reversed the three judge federal court which followed the Porter Case. In effect, the Mountain States Power Company Case advises bench and bar throughout the nation that what that court said in thePorter Case should be treated merely as judicial gossip. I do not concede the correctness of the holding in the MountainStates Power Company Case. I think it is shockingly erroneous and merits the sharp criticism made in 50 Harvard Law Review, pp. 813 to 818, and more.
Also, aside from the Mountain States Power Company Case, which, I think the Supreme Court of the United States will overrule at the first opportunity, there is another reason why the opinion of the United States Supreme Court, even though it had been unanimous for affirmance of the Bruce Case, would not be binding upon this court. It is a fundamental principle of law, supported by a legion of cases, that the United States Supreme Court accepts as binding upon it the construction and applicability of state statutes placed upon them by the courts of the state. In the Bruce Case the majority of this court held that section 25, Revised Codes, was the applicable statute. The Supreme Court of the United States in reviewing that case was bound to accept that holding and would not itself inquire into the question as to which statute applied. It was bound to announce its conclusion, taking as established the fact that section 25, and not section 25.1, was the controlling statute. That being the case, there could exist no reason to prevent this court from correcting its own error, and later holding that section 25.1 was and is the controlling statute.