Miller v. Southern Bell Tel. & Tel. Co.

• Decision Date: 24 March 1922
• Docket Number: 1942.
• Citation: 279 F. 806
• Parties: MILLER v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO.
• Court: U.S. Court of Appeals — Fourth Circuit

279 F. 806

MILLER v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO.

No. 1942.

United States Court of Appeals, Fourth Circuit.

March 24, 1922

D. W Robinson, of Columbia, S.C. (Miller & Lawson, of Darlington S.C., on the brief), for appellant.

William S. Nelson, of Columbia, S.C., and Henry E. Davis, of Florence, S.C. (nelson & Mullins, of Columbia, S.C., Willcox & Willcox and P. A. Willcox, all of Florence, S.C., E. W Mullins, of Columbia, S.C., and Hunt Chipley and E. D. Smith both of Atlanta, Ga., on the brief), for appellee.

Before KNAPP and WOODS, Circuit Judges, and McDOWELL, District Judge.

KNAPP Circuit Judge.

By statute enacted in 1904, now section 3161 of volume 1 of the Code of South Carolina, the Railroad Commission of that state was given jurisdiction and control 'over all telephone lines, stations, and exchanges,' with plenary power to fix and regulate the rates or tolls to be charged for services, and to make and enforce rules and regulations governing such telephone lines, stations, and exchanges. In March, 1916, the appellee, Southern Bell Telephone & Telegraph Company, herein called defendant, entered into contract with the town of Hartsville, S.C., by which it agreed to 'furnish local exchange telephone service to its Hartsville exchange subscribers within its exchange radius' on certain terms and at certain rates therein specified, subject to the approval of the Railroad Commission. This agreement was assented to in writing by a majority of the former subscribers, of whom plaintiff was one, and later confirmed by the Railroad Commission 'without prejudice.' The 'exchange radius' appears to have included Darlington, some 12 miles distant, and a number of rural lines.

In October, 1920, defendant filed a petition with the Railroad Commission, asking revision and increase of its rates throughout the state of South Carolina, on the ground, in substance, that the rates then permitted did not yield the return to which it was entitled. Notice of this application and of a hearing thereon was published 'once a week for at least four weeks,' as required by section 3161, in the four leading daily newspapers of the state, pursuant to which hearing was begun at Columbia on the 8th of December, and continued for several days. In March following the commission made an order effective 'from and after the 1st day of April, 1921,' approving and authorizing rates for telephone service in South Carolina according to a detailed schedule annexed thereto. This order prescribed higher rates for Hartsville subscribers than those named in the contract of March, 1916, and also, to correct a discrimination, abolished free service to Darlington; that is, removed Darlington from the 'exchange radius,' and imposed a toll charge for telephoning to that town.

In May, 1921, plaintiff brought this suit, in the court of common pleas of Darlington county, asserting that the contract of 1916 was still in force and binding on defendant, and that he was entitled to the rates fixed thereby, including free service to Darlington, alleging damages to the amount of $2,999, and demanding judgment for that sum, because of the increased rates enforced for Hartsville service and the imposition of a toll charge to Darlington, and praying for an injunction restraining defendant from refusing to furnish telephone service at the lower contract rates. The bill of complaint makes no mention of the commission's order. Before expiration of the time to plead, defendant filed its petition and bond in the court of common pleas, and gave notice of a motion to remove the cause to the United States District Court for the Eastern District of South Carolina. Upon hearing the motion was granted, for reasons stated in a well-considered opinion, and the cause removed accordingly. In the meantime defendant had filed an answer, setting up the order of the Railroad Commission, and alleging its right and duty to charge the higher rates thereby prescribed. In the court below a motion to remand was denied, the case tried on the merits, and the complaint dismissed. Plaintiff appeals.

The two questions here presented are the right of defendant to remove the cause, and the validity of the commission's order. Of these in their order. The refusal to remand is assailed, first, because, as is claimed, the requisite diversity of citizenship was not made to appear. This contention was not pressed in argument, and is plainly without merit. The complaint alleges that 'plaintiff is a citizen and taxpayer, resident at Hartsville, in the town of Hartsville, in the county of Darlington, in the state of South Carolina,' and that 'defendant is a corporation chartered and existing under and by the laws of the state of New York. ' This is equivalent to alleging that plaintiff is a citizen of South Carolina, for the court will take judicial notice that Hartsville is in the Eastern district of that state, and the fact that defendant owns property and carries on business in South Carolina does not make it any the less a citizen of New York. We deem it beyond doubt that diverse citizenship was sufficiently shown.

It is contended, second, that timely notice was not given of intention to file petition and bond for removal. Section 29 of the Judicial Code, as amended March 3, 1911, provides:

'Written notice of such petition and bond for removal shall be given the adverse party or parties prior to filing the same. ' Comp. St. Sec. 1011.

And plaintiff argues that this means such notice as may be fixed by rule of court, state or federal, or at least such notice as would be adjudged reasonable. In point of fact, the notice in question was served only an hour or two before the petition and bond were filed, which plaintiff says is practically the same as no notice at all, and therefore manifestly not the notice required. But this, in our opinion involves a misconception of the purpose of amending section 29. Formerly no notice of filing the petition and bond was necessary, and a cause might be removed without the plaintiff's knowledge. The object of the amendment, as we conceive, was not to give opportunity to oppose the filing, which no statute contemplates, but rather and merely to inform 'the adverse party or parties' that the right of removal will be exercised, and this object is accomplished by literal compliance with the provision; that is, by notice at any time, however short, before the actual filing. Hansford v. Stone-Ordean-Wells Co. (D.C.) 201 F. 187; Potter v. General Baking Co. (D.C.) 213 F. 697; Hinman v. Barrett (D.C.) 244 F. 621; Lewis v. Erie Railroad Co. (D.C.) 257 F. 869. To hold otherwise is to lose sight of the distinction between notice of filing the petition and bond, and notice of application for an order of removal. In this case the latter...