Omaha Elec. Light & Power Co. v. City of Omaha

• Decision Date: 01 January 1914
• Docket Number: 3141.
• Citation: 216 F. 848
• Parties: OMAHA ELECTRIC LIGHT & POWER CO. v. CITY OF OMAHA et al.
• Court: U.S. Court of Appeals — Eighth Circuit

216 F. 848

OMAHA ELECTRIC LIGHT & POWER CO. v. CITY OF OMAHA et al.

No. 3141.

United States Court of Appeals, Eighth Circuit.

May Term, 1914

William D. McHugh, of Omaha, Neb., for appellant.

W. C Lambert and Benjamin S. Baker, both of Omaha, Neb. (John A Rine and L. J. Te Poel, both of Omaha, Neb., of counsel), for appellees.

Before HOOK and SMITH, Circuit Judges, and AMIDON, District Judge.

AMIDON District Judge.

In 1884 the city of Omaha, by ordinance, granted to plaintiff a franchise empowering it to use the streets and alleys of the city for the purpose of transacting 'a general electric light business.' Thereafter in the progress of the art of electricity the company used its system for distributing electricity not only for lighting purposes, but also for heat and power. On the 26th of May, 1908, the city council, by resolution, directed its electrician to disconnect all wires of the plaintiff used in transmitting current for heat and power. Thereafter the plaintiff filed its bill in the United States Circuit Court for the District of Nebraska, setting up its franchise and claiming the right under it to use its system for all the purposes aforesaid, and asking a temporary injunction to restrain the enforcement of the resolution. Issue was joined, evidence taken, and a final decree entered on the 22d day of July, 1909, dismissing the bill for want of equity upon the ground that plaintiff had no right under its franchise to distribute electricity for power and heat. 172 F. 494. An appeal was sued out to this court, and on the 20th of April, 1910, an opinion was filed here holding that plaintiff's franchise had expired by limitation of time and that it, therefore, had no franchise to use the streets and alleys for distributing electricity for any purpose whatsoever. 179 F. 455, 102 C.C.A. 601. Pursuant to this opinion a decree was entered affirming the decree of the trial court. Plaintiff sued out an appeal to the Supreme Court of the United States to review this decision, and a supersedeas was thereupon granted and an order entered staying the mandate of this court.

Soon after our decision the Old Colony Trust Company, the trustee in a mortgage upon all of the Electric Light Company's property and franchises, filed a bill in equity against the same defendants in the District Court of the United States for the District of Nebraska, in which it alleged that the franchise rights of the plaintiff under the ordinance of 1884, and the practical construction placed thereon by the parties through a long course of dealing, included the right to distribute electric current for the purpose of power and heat as well as light. It specifically claimed the protection of the fourteenth amendment and the contract clause of the federal Constitution, and prayed an injunction to restrain the enforcement of the resolution above referred to as an impairment of the rights thus asserted. The city of Omaha filed its answer, denying the existence of the franchise for any purpose. The cause was submitted upon the pleadings and evidence, and a decree was entered following the decision of this court in the Electric Light Company Case, dismissing the bill for want of equity on the ground that all rights under said ordinance had expired prior to the bringing of the action. The Old Colony Trust Company appealed from this decree direct to the Supreme Court of the United States. Both appeals were heard together and opinions handed down June 16, 1913. The appeal from our decision in the Electric Light Company Case was dismissed for want of jurisdiction, because the complaint failed to raise clearly any federal question. 230 U.S. 123, 33 Sup.Ct. 974, 57 L.Ed. 1419. In the Old Colony Trust Co. Case the court held that the ordinance granted a perpetual franchise, which included the right to distribute electricity for power and heat as well as light. 230 U.S. 100, 33 Sup.Ct. 967, 57 L.Ed. 1410. A decree was entered in accordance with this opinion, reversing the decree of the District Court of Nebraska and remanding the cause to that court with directions to restrain the enforcement of the resolution.

The dismissal of the appeal from our decision leaves our decree standing, though it is in direct conflict with the decision of the Supreme Court.

Plaintiff, at the December, 1913, term of this court at St. Louis, while the stay of our mandate was still in force, presented its bill, designated 'a bill in the nature of a bill of review,' giving the foregoing history of the litigation, and praying for a revision of our decree, and, upon notice to defendants, moved for permission to file the same. Defendants appeared and filed written objections. The matter was fully argued, and an order entered allowing the motion and ruling the defendants to answer the bill. An answer has been filed which admits all material facts and raises only questions of law, and the case is now before us for disposition on the merits.

For the purposes of this application there is no material difference in the issue in the Electric Light Company Case, and the Old Colony Trust Company Case. The wrong in each was the threatened enforcement of the resolution. The right of the plaintiff in each was created by the ordinance granting the franchise. The resolution and ordinance were set out in full in both complaints. The controversy turned upon whether the Electric Light Company had a subsisting right under the ordinance which the enforcement of the resolution would impair. In the Old Colony Trust Company Case the facts showing the practical construction which the parties themselves had put upon the ordinance were set forth with greater fullness than in the other case. This, however, was used by the Supreme Court, not for the purpose of creating an estoppel, but for the purpose of applying a familiar canon of construction with a view to ascertaining the true meaning of the ordinance. It is that meaning, however ascertained, which defines the right of the plaintiff in each case. The Old Colony Trust Company had no right except that which it derived from the Electric Company. The ordinance measures both. The plaintiffs are different in name, but identical in right.

In the Electric Light Company Case the trial court held that the ordinance did not grant the right to distribute current for heat and power, and dismissed the bill, thus leaving the city free to execute its resolution to cut all wires used for those purposes. We held that all rights granted by the ordinance had expired by limitation, and affirmed the decree of the trial court. The Supreme Court held in the Old Colony Trust Co. Case, that the franchise granted by the ordinance was perpetual; that it embraced the right to distribute current for heat and power, as well as light, and directed the trial court to issue an injunction to restrain the enforcement of the resolution. If we send down a mandate pursuant to our decree, we shall declare, in square conflict with the mandate of the Supreme Court, that the company has no franchise to distribute current for heat and power, and that the city has the right to cut all wires used for those purposes.

If we have the power to revise our decree and issue a mandate in harmony with that of the Supreme Court, it is plainly our duty to do so. This we should do not only to protect the rights of the plaintiff as a litigant, but as a matter of public policy to preserve the orderly administration of justice and avoid an unseemly conflict of judicial mandates.

A learned argument has been submitted by counsel dealing with bills of review in courts of chancery in this country and England. Much of this seems to us irrelevant. It has long been settled that the practice on rehearings in the English Courts of Chancery is not applicable to federal appellate courts. In Brown v. Aspden, 14 How. 25, 14 L.Ed. 311, Chief Justice Taney, speaking for the court, said:

'A motion has been made for a rehearing in this case, and we have been referred to the practice of the English Chancery Court in support of the application. The argument presupposes that this court, in cases in equity, has adopted the rules and practice of the English chancery. But this is a mistake. The English chancery is a court of original jurisdiction; and this court is sitting as an appellate tribunal. It would be impossible, from the nature and office of the two tribunals, to adopt the same rules of practice in both. * * * In the House of Lords, in England, to which the appeal lies from the Court of Chancery, a rehearing is altogether unknown. A reargument, indeed, may be ordered, if the house desires it, for its own satisfaction. But the chancery rules in relation to rehearings, in the technical sense of the word, are altogether inapplicable to the proceedings on the appeal.

'Undoubtedly this court may and would call for a reargument, where doubts are entertained which it is supposed may be removed by further discussion at the bar. And this may be done after judgment is entered, provided the order for reargument is entered at the same term. But the rule of the court is this: That no reargument will be heard in any case after judgment is entered, unless some member of the court who concurred in the judgment afterwards doubts the correctness of his opinion, and desires a further argument on the subject. And when that happens, the court will, of its own accord, apprise the counsel of its wishes, and designate the points on which it desires to hear them.

'There is certainly nothing in the history of the English Court of Chancery to induce this court to adopt rules in relation to rearguments, analogous to the chancery practice upon applications for a rehearing. According to the general practice of that court, one rehearing, where

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