In re City of Louisville, Kentucky, Petitioner. riginal

• Decision Date: 05 January 1914
• Docket Number: No. 11,O,11
• Citation: 231 U.S. 639,58 L.Ed. 413,34 S.Ct. 255
• Parties: IN RE CITY OF LOUISVILLE, Kentucky, Petitioner. riginal
• Court: U.S. Supreme Court

231 U.S. 639

34 S.Ct. 255

58 L.Ed. 413

IN RE CITY OF LOUISVILLE, Kentucky, Petitioner.

No. 11, Original.

Argued November 10, 1913.

Decided January 5, 1914.

Messrs. Pendleton Beckley, J. W. S. Clements, and Stuart Chevalier for petitioner.

[Argument of Counsel from pages 639-641 intentionally omitted] Messrs. Alexander Pope Humphrey, William L. Granbery, and Hunt Chipley for respondent.

Mr. Justice McKenna delivered the opinion of the court:

Petition for a rule on the judge of the district court of the United States for the western district of Kentucky to show cause why a mandamus should not issue commanding him to vacate the supplemental order of reference entered on March 10, 1913, in the cause entitled Cumberland Teleph. & Teleg. Co. v. Louisville, pending in said district court, and to desist from further trying in the cause the question whether the ordinance of March 6, 1909, in litigation in the cause, is confiscatory and void as to the company, and further commanding him to dismiss the bill of complaint, retaining the same on the docket, however, for the purpose of ascertaining the amounts collected by the company from its patrons in the city of Louisville in excess of the rates prescribed in the ordinance, and for the further purpose of distributing the same among the persons entitled thereto.

A rule was issued in accordance with the petitioner, and return thereon duly made by the district judge.

The suit referred to was brought by the Telephone & Telegraph Company against the city in the circuit court, the predecessor of the district court, on the 8th of March, 1909, and sought an injunction enjoining the city of Louisville from enforcing the ordinance referred to on the ground that the rates prescribed by it were confiscatory. Upon the filing of the bill a temporary restraining order was granted. A motion was also made for an injunction pendente lite, but was not passed upon till final hearing on the 25th of April, 1911, when a permanent injunction was decreed, the court adjudging the rates fixed to be confiscatory.

On the 15th of June, 1909, the city moved for an order requiring the company to pay into court all sums collected in excess of those fixed in the ordinance. Thereupon the company agreed that if the court make no order in pursuance of the motion, it would keep an accurate account of the sums collected in excess of the rates fixed in the ordinance, and would, on the final hearing, pay the amounts into court for distribution among those entitled thereto provided the ordinance was not declared to be confiscatory. In pursuance of the agreement the court refrained from making the order prayed for, and allowed the restraining order to remain in force.

An appeal to this court was taken by the city from the decree of perpetual injunction, and the decree was reversed. 225 U. S. 430, 56 L. ed. 1151, 32 Sup. Ct. Rep. 741. This court reviewed the evidence upon which the circuit court decided that the rates were confiscatory, and said:

'We express no opinion whether to cut this telephone company down to 6 per cent by legislation would or would not be confiscatory. But when it is remembered what clear evidence the court requires before it declares legislation otherwise valid void on this ground, and when it is considered how speculative every figure is that we have set down with delusive exactness, we are of opinion that the result is too near the dividing line not to make actual experiment necessary. The master thought that the probable net income for the year that would suffer the greatest decrease would be 8.60 per cent on the values estimated by him. The judge, on assumptions to which we have stated our disagreement, makes the present earnings 5-10.17 per cent, with a reduction by the ordinance to 3-6.17 per cent. The whole question is too much in the air for us to feel authorized to let the injunction stand.

'Decree reversed without prejudice.'

A mandate was issued, the material parts of which are as follows:

'On consideration whereof, it is now...