Alabama Public Service Commission v. Louisville & N.R. Co.

• Decision Date: 12 May 1921
• Docket Number: 3 Div. 500
• Citation: 89 So. 524,206 Ala. 326
• Court: Alabama Supreme Court
• Parties: ALABAMA PUBLIC SERVICE COMMISSION et al. v. LOUISVILLE & N.R. CO.

89 So. 524

206 Ala. 326

ALABAMA PUBLIC SERVICE COMMISSION et al. v. LOUISVILLE & N.R. CO.

3 Div. 500

Supreme Court of Alabama

May 12, 1921

Rehearing Denied June 30, 1921

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Bill by the Louisville & Nashville Railroad Company against the Alabama Public Service Commission, and the individual members thereof to enjoin the enforcement of an order requiring complainant to furnish telegraphic communications between certain towns in Alabama, and to annul and vacate the order. From a decree granting the relief, respondents appeal. Affirmed.

Harwell G. Davis, Atty. Gen., for appellants.

Jones &amp Thomas and Goodwyn & McIntyre, all of Montgomery, for appellee.

SAYRE J.

The bill in this cause was filed by appellee against appellant and sought to enjoin the enforcement of an order made by appellant whereby appellee was required, among other things to establish and maintain a public telegraphic service to some 20 towns and villages in this state situated on branch lines of railroad owned and operated by appellee. The trial court overruled a demurrer to the bill of complaint, and denied appellant's motion to dissolve a temporary injunction which had been granted upon the filing of the bill. These rulings are assigned for error.

Prior to April 30, 1920, the Western Union Telegraph Company had maintained a public telegraphic service, or commercial service, as it is commonly called, to the towns affected by appellant's order over lines erected on appellee's right of way. These lines had been erected, and for years maintained and operated, in pursuance of a contract between appellee and the telegraph company, the effect of which, stated in very general terms, was that, in consideration of the telegraph company's use of appellee's right of way for the transmission of the company's commercial messages, it should transmit for appellee messages necessary and useful in the operation of its railroad. In 1912 the Western Union Company, in virtue of a provision to that end, had elected to terminate the contract, and had then set on foot proceedings to condemn to its use in situ the lines of poles and wires which it had previously operated on appellee's right of way, but at the end of litigation long drawn out (L. & N.R. Co. v. Western Union Telegraph Co., 195 Ala. 124, 71 So. 118, Ann.Cas.1917B, 696; Western Union Telegraph Co. v. L. & N.R. Co., 244 U.S. 649, 37 Sup.Ct. 743, 61 L.Ed. 1371; Western Union Telegraph Co. v. L. & N.R. Co. (D.C.) 201 F. 946; L. & N.R.R. Co. v. Western Union Telegraph Co., 207 F. 1, 124 C.C.A. 573; L. & N.R. Co. v. Western Union Telegraph Co., 252 F. 29, 164 C.C.A. 141), it was ordered, adjudged, and decreed, in effect, by courts of competent jurisdiction that the telegraph company should remove its telegraph lines in question from appellee's right of way by midnight of April 30, 1920. Thereafter, viz. May 1, 1920, as the result of previous negotiations appellee purchased the lines in question from the Western Union and the same were immediately delivered to appellee, after which commercial service over said lines was discontinued. Previous to the execution of the contract of sale aforementioned, viz. about April 20, 1920, the Western Union notified the Alabama Public Service Commission that, on account of the decrees and judgments of the court in the premises, it would on April 30, 1920, vacate appellee's right of way, and thereafter would discontinue its public telegraph service to the 20 towns and villages to which we have referred.

On May 1, 1920, the Public Service Commission cited appellee to show cause, in substance, (1) why appellee should not submit for approval the contract by which it had purchased from the Western Union the lines of poles and wires in question, and why (2) it should not be required to establish and continue over the lines so purchased public telegraph service to the towns and villages aforementioned. Afterwards, and as the result of a hearing, the Public Service Commission entered an order approving appellee's purchase of the lines in question, but upon condition that appellee continue to furnish through and over them the public telegraph service previously furnished by the Western Union, and ordering that, so long as appellee retained possession of said lines, it should furnish public telegraph service to said towns and villages, after which appellee filed its bill in this cause, and proceedings were had and decrees entered as noted in the beginning.

The Public Service Commission, which had succeeded to the powers and duties of what was the Railroad Commission, exercises a limited statutory jurisdiction and the court of equity may enjoin the enforcement of its orders when in excess of jurisdiction, unreasonable, or unjust. Railroad Commission v. Ala. North. Ry. Co., 182 Ala. 357, 62 So. 749.

By Acts Aug. 6, 1915 (Acts, p. 268), it was provided that--

"The property of a public utility, together with its franchises, contracts, business, good will, and other assets, may be lawfully sold and conveyed or leased to, and thereafter lawfully held, enjoyed and operated by, a purchaser then engaged or proposing to engage in the business conducted by such public utility *** whenever such sale and conveyance or lease of the property *** is consistent with the interests of the public. *** The question whether the proposed sale and conveyance or lease is consistent with the interests of the public shall be determined by *** the Railroad Commission of Alabama, and if *** the Railroad Commission of Alabama *** determines that the proposed sale and conveyance, or lease, is consistent with the interests of the public, their determination shall be shown by their approval of the proposed sale and conveyance or lease."

The act further provided that nothing therein contained should be construed to limit or restrict the right to sell, etc., where a sale would be legal without reference to its provisions. Section 2 of the act. Of a proceeding under this act ...