Cumberland Tel. & Tel. Co. v. City of Memphis

• Decision Date: 17 September 1912
• Docket Number: 675,in Equity.
• Citation: 198 F. 955
• Court: U.S. District Court — Western District of Tennessee
• Parties: CUMBERLAND TELEPHONE & TELEGRAPH CO. v. CITY OF MEMPHIS et al.

198 F. 955

CUMBERLAND TELEPHONE & TELEGRAPH CO. v. CITY OF MEMPHIS et al.

No. 675, in Equity.

United States District Court, W.D. Tennessee, Western Division.

September 17, 1912

Chas M. Bryan and Leo Goodman, both of Memphis, Tenn., for defendants.

Before DENISON, Circuit Judge, and McCALL and SANFORD, District judges.

PER CURIAM.

In this matter the District Judge was asked to issue a preliminary injunction to restrain the enforcement of an ordinance of the city of Memphis, fixing the rates to be charged by the complainant Telephone Company. Doubting his authority to hear this application alone, because of the requirements of section 266 of the Judicial Code, the District Judge called in another District Judge and a Circuit Judge to sit with him.

The first matter considered by the court, so constituted, must be the question of power, because, if the section does apply, a District Judge cannot hear the application alone; and, if the section does not apply, the other judges cannot participate in the hearing. The question does not seem to have been passed upon, except in one case, where it was decided without discussion, that section 266 was not applicable. Sperry & Hutchinson Co. v. City of Tacoma (C.C.) 190 F. 682.

We agree that this section of the Code is ambiguous, and is capable of a construction which would make it apply to the case before us. It is well settled that a city ordinance may be considered a law of the state, within the meaning of the constitutional provision that no state shall pass any law impairing the obligation of contracts. N. O. Waterworks v. Louisiana Sugar Co., 125 U.S. 18, 31, 8 Sup.Ct. 741 31 L.Ed. 607; Iron Mt. R.R. Co. v. Memphis (C.C.A 6), 96 F. 113, 126, 37 C.C.A. 410. The same considerations have led to holding that the order of a railroad commission was a 'law of the state.' Grand Trunk Ry. v. Indiana R.R. Commission, 221 U.S 400, 403, 31 Sup.Ct. 537, 55 L.Ed. 786.

So, too, the mayor of Memphis, who is one of the defendants, is, for some purposes, considered to be an officer of the state (State v. Critchett, 1 Lea (Tenn.) 272); and hence the restriction of section 266 to 'injunctions against state officers' does not necessarily exclude the present case.

However considering the entire section together, and what is known as to the reasons for its enactment, the majority of the court, as now constituted, considers that this section does not govern the present case. They think that the natural meaning of 'statute of a state' is a statute or law directly passed by the Legislature of the state, and the natural meaning of 'any officer of such state' is an officer whose authority extends throughout the state, and is not limited to a small district; and they believe that Congress used these phrases with this natural meaning, rather than with the broader and less obvious meaning which...