Louisville & N.R. Co. v. Western Union Telegraph Co.

• Decision Date: 29 July 1920
• Docket Number: 3320.
• Citation: Louisville & N.R. Co. v. Western Union Telegraph Co., 268 F. 4 (6th Cir. 1920)
• Parties: LOUISVILLE & N.R. CO. v. WESTERN UNION TELEGRAPH CO. [1]
• Court: U.S. Court of Appeals — Sixth Circuit

268 F. 4

LOUISVILLE & N.R. CO. v. WESTERN UNION TELEGRAPH CO. ^[1]

No. 3320.

United States Court of Appeals, Sixth Circuit.

July 29, 1920

On Application for Rehearing, October 15, 1920.

On Application for Rehearing.

Helm Bruce, of Louisville, Ky. (Henry L. Stone, Edward S. Jouett and William A. Colston, all of Louisville, Ky., on the brief), for appellant.

Alex P Humphrey, of Louisville, Ky. (A. E. Richards, Richards &amp Harris, and Humphrey, Crawford, Middleton & Humphrey, all of Louisville, Ky., and Rush Taggart and Francis S. Stark, both of New York City, on the brief), for appellee.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DENISON Circuit Judge.

Pursuant to a Kentucky statute of 1898 (Ky. St. Sec. 4679c), the telegraph company, in December, 1911, began a proceeding to condemn an easement for a line of telegraph poles and wire over and along the right of way of the railroad company within the state of Kentucky. The details of the situation involved are fully stated in the opinions of this court in the suits between the same parties, reported in 207 F. 1, 124 C.C.A. 573, in 249 F. 385, 161 C.C.A. 359, and in 252 F. 29, 164 C.C.A. 141. The condemnation proceeding came to a trial upon the law side of the court below, and resulted in a judgment of condemnation and an award of damages to be paid by the telegraph company to the railroad company in the sum of $500,000. The District Court granted a new trial. Upon the second trial, there was again a judgment of condemnation, and the damages were fixed, by direction of the court and upon the theory that only nominal damages could be recovered, at the sum of $5,000. This judgment was entered on February 16, 1916. On March 18, 1916, the telegraph company paid into the registry of the court the amount of this judgment and costs. A writ of error from this court was allowed on June 19, 1916, and on May 8, 1918, this court entered judgment reversing the judgment of the District Court and remanding the cause, with instructions to award a new trial generally upon the subject of compensation and to some extent upon the subject of necessity. 249 F. 385, 403, 161 C.C.A. 359. In March, 1919, the railroad company tendered and filed in the injunction suit (207 F. 1, 124 C.C.A. 573; 252 F. 29, 161 C.C.A. 141), a supplemental answer, alleging that the act of 1898, upon which the condemnation suit rested, had been repealed, and that further prosecution thereof would be in violation of the law. It thereupon moved to dissolve the existing injunction, so far as this pertained to Kentucky. It also filed, in the condemnation case, a motion for dismissal upon the same ground. The motion to dissolve the injunction as to Kentucky was denied, and the railroad company brings this appeal.

The substantial question involved is whether the repeal of the 1898 law was effective as against this pending proceeding, and all parties agree that this question may be considered and decided upon this appeal, without regard to the fact that it might be raised somewhat more directly in the condemnation case itself.

The repealing law was approved March 14, 1916. It is given in the margin. ^[1a] It is so plain that the interests of the owner are not 'TAKEN,' AT LEAST UNTIL THE EFFECTIve judgment of condemnation, and the language of this act of 1916 so explicitly forbids the taking of such an interest as is being sought in this condemnation proceeding, that it seems to have been taken for granted, in the court below as here, that the condemnation suit must fail ^[2] unless for one of the two special reasons urged against giving this new statute its seeming full effect. The first is that, by the force of a general rule of construction embodied in the Kentucky Statutes, the act of 1916 should not be construed as intended to reach pending cases; the second is that, if the Legislature did so intend, it had not the constitutional power

Section 465 of the Kentucky Statutes says, so far as now pertinent:

'No new law shall be construed to repeal a former law as to * * * any right accrued or claim arising under the former law, or in any way whatever to affect * * * any right accrued or claim arising before the new law takes effect. * * * '

So far as concerns the claim that the pendency of a judicial proceeding as to the existing right or conditions is a controlling consideration, it will be apparent that this section (465) makes no direct reference to that subject. It does not say that no new law shall be construed to repeal another, so as to affect any proceeding pending, but speaks only with reference to its effect upon any 'right accrued or claim arising under the former law' or 'any right accrued or claim arising before the new law takes effect. ' Those 'rights' or 'claims' which are thus exempted might or might not be involved in pending judicial proceedings; that would be as it happened; but the exemption would be the same in either case. ^[3] In applying this statute (section 465) here, we must lay aside the fortuitous fact that judicial proceedings were pending, and consider merely whether the telegraph company's proposition that it could acquire this easement against the will of the railroad company was a 'right accrued or claim arising under the former law,' and this is much the same question hereafter considered under the other branch of the case

In any event, section 465 does no more than lay down a canon of construction for doubtful cases. Except so far as it may embody the constitutional principle that vested rights may not be destroyed, it could not, if it would-- and quite clearly it does not attempt to-- make invalid any future act which should be made to repeal expressly a former law 'as to rights accrued and claims arising' thereunder. It is only when the language of an act is vague and general, and might or might not fairly be taken to show an intent to affect a situation which had arisen under a former law, that the courts would go to section 465 to get a rule of construction.

We cannot find in the statute of 1916 any ambiguity which authorizes reference to section 465. Section 2 of the act repeals all former laws, and, if it stood alone, there would be force in suggesting a resort to section 465; but section 1, in the most express language, forbids the rendering of the judgment which is demanded in the condemnation case. It says:

'No part of the right of way * * * or any interest or easement therein, shall be taken by any condemnation proceeding * * * by any telegraph * * * company, ' etc.

Whether or not it can be assumed that the Legislature had this particular condemnation in mind, we think that the intent to stop every such immature proceeding, whether initiated or not, is too clear for doubt; section 2 alone would do everything except arrest a case pending; section 1 could have had no purpose except that. Thus we must come to the question of power.

The right of eminent domain is an attribute of sovereignty. The moment it is thought of as a private right, it ceases to exist. It is none the less a public right, because the state sometimes consents that it may be exercised by a quasi public corporation, like a common carrier. Such license or permission is granted because its exertion in that form is thought to be for the public interest. The statute of 1898 does not grant to or vest in the telegraph companies any property right. It permits them to proceed in their own names, but really on behalf of the state, with the preliminary proceedings to determine whether the condemnation is for the public interest, and to fix the amount of the damages, and then allows them to take the interest in question; but certainly nothing is 'taken' until the judgment is obtained and its conditions performed. Until that time, the telegraph company has only a license to exercise, as the agent of the state, a portion of the sovereign power of the state. Even an express provision in such a statute that a subsequent Legislature could not recall the permission and cancel the license, if the steps preliminary to taking had been commenced, but had not ripened into a private right, would doubtless be invalid, because one Legislature cannot limit the governmental power of its successor. The ordinary rules of mutuality lead to the same result. The condemnor may abandon the proceedings, if he thinks the award is too high. Can the state be irrevocably bound, when its licensee has only an option? These considerations lie at the base of the matter now involved, and are so familiar that they need only be stated.

The subject-matter involved is the easement over the railroad right of way. We do not see how it can be claimed that the telegraph company, by filing its petition for condemnation and going to trial on the issue, acquired any right to or interest in this easement. The language of the statute is that it shall 'have the right' to construct and maintain its line along the railroad right of way-- when? 'Upon making just compensation as hereinafter provided'; that is to say, after obtaining a judgment and paying the fixed amount. Until that time the statute does not purport to grant any right.

Nor can we think that any now existing right was acquired by the payment into court of the amount of the judgment. That judgment was reversed. With exceptions not here important, a judgment which is reversed and set aside is as if it had never been. When plaintiff recovers a judgment upon conditions, he surely cannot, by immediate performance of the conditions, deprive the defendant of the right to go to the reviewing court and get the judgment set aside; yet to this point necessarily comes the claim that, by paying the judgment into court, plaintiff acquired some kind of an interest which was vested, so...