City of Amarillo v. Southwestern Tel. & Tel. Co.

• Decision Date: 12 November 1918
• Docket Number: 3271.
• Citation: 253 F. 638
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: CITY OF AMARILLO et al. v. SOUTHWESTERN TELEGRAPH & TELEPHONE CO.

253 F. 638

CITY OF AMARILLO et al. v. SOUTHWESTERN TELEGRAPH & TELEPHONE CO.

No. 3271.

United States Court of Appeals, Fifth Circuit.

November 12, 1918

Rehearing Denied December 19, 1918.

W. H Kimbrough, R. E. Underwood, and M. J. R. Jackson, all of Amarillo, Tex., for appellants.

S. P English, of Dallas, Tex., for appellee.

Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

GRUBB District Judge.

This is an appeal by the defendant in the District Court (appellant here) from an interlocutory order of that court directing the issue of an injunction pendente lite, restraining the defendant from the enforcement of a municipal ordinance against the plaintiff (appellee) which prohibited the plaintiff from collecting increased rates for service, fixed by it, until it had installed its wires underground within the fire limits of the city of Amarillo. The motion for a temporary injunction was heard upon bill, answer, affidavits and counter affidavits.

The plaintiff claimed the right to put in and maintain the increased rates by virtue of the ordinance granting its predecessor the franchise to maintain and operate its telephone system in the streets of the city. The defendant contended that the plaintiff was in default of a stipulation in the ordinance that it was to install its wires underground within the city's fire limits, which it was conceded it had not done, and that it could not resort to a court of equity to enforce the ordinance, as a contract, in its favor, while in default of performance of the conditions required of it. The plaintiff also claimed that the rates in force before increased were confiscatory, and that, regardless of the ordinance contract, it could enjoin the inhibitory ordinance upon the ground that it deprived plaintiff of its property without due process. The defendant denied that the old rates were confiscatory, and denied plaintiff's right to resort to equity, while in default under the contract ordinance, though they were confiscatory.

The District Judge did not undertake to determine, on the hearing of the motion, any issue of fact or law, except the default of the plaintiff as to the underground installation; but in view of the serious and doubtful questions presented by the motion, and the impossibility of reaching a proper conclusion on a preliminary hearing, and in view of the fact that the subscribers, represented by the defendant, could be amply protected, if the temporary injunction issued, by a deposit in the registry of the court for their reimbursement in the event the increased rates were held to be illegally put into effect on the final hearing, while the plaintiff, if the temporary injunction was denied, would irreparably lose the benefit of the increased rates until final hearing, even if the increased rates were then sustained and the inhibitory ordinance permanently enjoined, decided to grant the motion, conditioned upon...