Central Union Telephone Co v. City of Edwardsville, 37

• Decision Date: 23 November 1925
• Docket Number: No. 37,37
• Citation: 70 L.Ed. 229,269 U.S. 190,46 S.Ct. 90
• Parties: CENTRAL UNION TELEPHONE CO. v. CITY OF EDWARDSVILLE
• Court: U.S. Supreme Court

269 U.S. 190

46 S.Ct. 90

70 L.Ed. 229

CENTRAL UNION TELEPHONE CO.

v CITY OF EDWARDSVILLE.

No. 37.

Argued Oct. 13, 1925.

Decided Nov. 23, 1925.

Messrs. Wm. D. Bangs and Nathan G. Moore, both of Chicago, Ill., for plaintiff in error.

[Argument of Counsel from page 191 intentionally omitted] Mr. Chief Justice TAFT delivered the opinion of the Court.

The city of Edwardsville in July, 1882, by ordinance granted to the Central Union Telephone Company a right in its streets to erect and maintain the necessary poles and wires for the operation of a telephone system. The Central Telephone Company transferred its rights to the Central Union Telephone Company. Later the city council adopted a resolution requesting the Central Union Telephone Company to furnish to the city, free of charge, one telephone and such additional telephones as the city council might call for at a reduction of 25 per cent. from the regular rates, and the right to attach, without charge, fire and police alarm wires to the top cross-arm of each pole. The company filed its acceptance of this resolution as provided in the resolution. It maintains 1,000 poles in the city of Edwardsville. The city in 1914 passed an ordinance which in effect imposes a tax of 50 cents a pole upon every person, firm, or corporation owning, controlling, or occupying any such poles in the streets of Edwardsville. The city brought suit for the amount due under the tax law at 50 cents a pole. A jury was waived, and after a hearing the court entered judgment for $3,000 against the company. The circuit court held that neither the ordinance by which the Central Telephone Company was permitted to occupy the streets, nor the subsequent resolution accepted by the Central Union Telephone Company, constituted a contract, and that the tax law was not, therefore, a violation of the Constitution of the United States, in impairing a contract, or in depriving the company of property without due process of law. Upon this record an appeal was taken to the Appellate Court of the state for the Fourth Circuit. That court transferred the case to the Supreme Court of Illinois, on the ground that the Appellate Court had no jurisdiction of it. The City of Edwardsville v. Central Union Telephone Co., 302 Ill. 362, 134 N. E. 716. The Supreme Court held that, as the appeal had been taken to the Appellate Court and errors assigned which that court had jurisdiction to hear, the case was improperly transferred to the Supreme Court, and remanded it to the Appellate Court, which gave judgment, affirming the circuit court. 227 Ill. App. 424. The plaintiff then obtained a certiorari from the Supreme Court to review the decision of the Appellant Court, and in that hearing the Supreme Court declined to hear the constitutional questions, on the ground that they had been waived by the failure to carry the case from the circuit court directly to the Supreme Court to review those questions. 309 Ill. 482, 141 N. E. 206.

Paragraph 89, section 88 (3 Starr & Curtiss' Annotated Illinois Statutes, p. 3114), reads as follows:

'Par. 89. Appeal from Trial Court to Appellate Court-From Trial Court to Supreme Court. Sec. 88. Appeals from and writs of error to circuit courts, the superior court of Cook county, the criminal court of Cook county, county courts and city courts in all criminal cases, below the grade of felony, shall be taken directly to the Appellate Court, and in all criminal cases above the grade of misdemeanors, and cases in which a franchise or freehold or the validity of a statute or construction of the Constitution is involved, and in all cases relating to revenue, or in which the state is interested as a party or otherwise, shall be taken directly to the Supreme Court.'

The construction of this statute has been uniformly held to be that, where a question involves the Constitution, it must be taken on error or appeal to the Supreme Court, and that, if it be taken to the Appellate Court on other grounds, the party taking the appeal or suing out the writ of error shall be held to have waived the constitutional questions. Indiana Millers Ins. Co. v. People, 170 Ill. 474, 49 N. E. 364; Robson v. Doyle, 191 Ill. 566, 61 N. E. 435; Case v. Sullivan, 222 Ill. 56, 78 N. E. 37; Poe v. Ulrey, 233 Ill. 56, 84 N. E. 46; Haas Co. v. Amusement Co., 236 Ill. 452, 86 N. E. 248, 12 L. R. A. (N. S.) 620, 127 Am. St. Rep. 297; Scott v. Artman, 237 Ill. 394, 86 N. E. 295; Comm'rs v. Shockey, 238 Ill. 237, 87 N. E. 335. The city, therefore, moves to dismiss the writ of error.

It is objected on behalf of the plaintiff in error that the words 'validity of a statute or construction of the Constitution' refer to the Constitution of Illinois and not to the federal Constitution. The Supreme Court of Illinois has held otherwise in this case. City of Edwardsville v. Central Union Tel. Co., 309 Ill. 482, 483, 484, 141 N. E. 206.

But counsel for plaintiff in error insist that it is for this court to determine finally whether a litigant in a state court has waived his federal right, citing Davis v. O'Hara, 266 U. S. 314, 45 S. Ct. 104, 69 L. Ed. 303; Davis v. Wechsler, 263 U. S. 22, 44 S. Ct. 13, 68 L. Ed. 143; American Railway Exp. Co. v. Levee, 263 U. S. 19, 44 S. Ct. 11, 68 L. Ed. 140; Truax v. Corrigan, 257 U. S. 312, 324, 42 S. Ct. 124, 66 L. Ed. 254, 27 A. L. R. 375; Union Pacific Railway Co. v. Public Service Commission, 248 U. S. 67, 39 S. Ct. 24, 63 L. Ed. 131. But there is nothing in these cases which justifies this court in ignoring or setting aside a required form of practice under the appellate statutes of the state...