Southern Bell Tel. & Tel. Co. v. Town of Calhoun

Citation287 F. 381
PartiesSOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. TOWN OF CALHOUN et al.
Decision Date23 February 1923
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Hagood Rivers & Young, of Charleston, S.C., Grier & Park, of Greenwood, S.C., and Bonham & Price, of Greenville, S.C., for complainant.

WATKINS District Judge.

The General Assembly of South Carolina at its session in 1922 enacted the following joint resolution (32 Statutes at Large p. 1530):

'A joint resolution to require the Southern Bell Telephone &amp Telegraph Company to furnish and maintain telephone service to the citizens of Calhoun, S.C., and Clemson College, S.C.
'Section 1. Southern Bell Telephone & Telegraph Company to furnish service at Calhoun and Clemson College.-- Be it resolved by the General Assembly of the state of South Carolina: That the Southern Bell Telephone & Telegraph Company be, and it is hereby, required within six months after the approval of this act, to furnish and maintain a telephone exchange for local and long distance service for the benefit and convenience of the citizens of the towns of Calhoun, S.C., and Clemson College, S.C., and the territory immediately surrounding in Oconee and Pickens counties.
'Sec. 2. Penalty for Failure to Comply.-- That the said Southern Bell Telephone & Telegraph Company shall be liable to a penalty of ten ($10.00) dollars for each day of neglect or failure to comply with the requirements of this act after the expiration of the six months from the approval of this act, to be recovered at the suit of any person aggrieved by such failure, refusal or neglect.
'Sec. 3. This act shall take effect immediately upon its approval by the Governor.
'Sec. 4. All acts or parts of acts inconsistent herewith are hereby repealed.
'Approved the 3d day of April, A.D. 1922.'

Plaintiff brings this suit in equity to restrain the defendants and all other persons interested, as the defendants are brought into court as representatives of the class, from enforcing the provisions of this joint resolution. All the defendants were legally served and have defaulted. The allegations of the bill must therefore be taken as true, pro confesso, against them.

The bill was filed, and after due notice to the defendants, before the expiration of the six months' limitation provided in the joint resolution, an order was granted by the court temporarily restraining the enforcement of the provisions of the joint resolution. Plaintiff is now seeking a permanent injunction. The essential facts established by the bill, in addition to the necessary jurisdictional allegations, may be briefly summed up as follows:

There were at the time of the enactment of the joint resolution 112 companies, individuals, or associations in South Carolina, other than plaintiff, engaged in the telephone business. Plaintiff is under no franchise, charter, contractual, or other legal obligation to maintain an exchange for the telephone service provided in the resolution, and has not owned and does not own, maintain, or operate, nor has expressed its willingness to operate, such an exchange. The construction of such exchange will require a capital expenditure of upwards of $10,000, and the maintenance thereof a continuing outlay of money. Plaintiff alleges that the resolution is void, in that it contravenes the provisions of the Fourteenth Amendment of the Constitution of the United States, because it deprives plaintiff of its property without due process of law, and denies it the equal protection of the laws, and also because it contravenes section 17 of article 1 of the Constitution of South Carolina, which provides that:

'Private property shall not be taken for private use without the consent of the owner, nor for public use without just compensation being first made therefor.'

There can be no question that plaintiff has pursued the proper course in thus seeking to test the validity of the legislative enactment before any of the penalties therein provided for have been incurred. Ex parte Young, 209 U.S. 123, 28 Sup.Ct. 441, 52 L.Ed. 714, 13 L.R.A.(N.S.) 932, 14 Ann.Cas. 764; Willcox v. Gas Co., 212 U.S. 19, 29 Sup.Ct. 192, 53 L.Ed. 382, 48 L.R.A. (N.S.) 1134, 15 Ann.Cas. 1034; Wadley Southern Railway Co. v. Georgia, 235 U.S. 651, 35 Sup.Ct. 214, 59 L.Ed. 405. In the Willcox Case the court said:

'At the outset it seems to us proper to notice the views regarding the action of the court below, which have been stated by counsel for the appellants, the Public Service Commission, in their brief in this court. They assume to criticize the court for taking jurisdiction of this case, as precipitate, as if it were a question of discretion or comity, whether or not that court should have heard the case. On the contrary, there was no discretion or comity about it. When a federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction (Cohen v. Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257), and in taking it that court cannot be truthfully spoken of as precipitate in its conduct. That the case may be one of local interest only is entirely immaterial, so long as the parties are citizens of different states or a question is involved which by law brings the case within the jurisdiction of a federal court. The right of a party plaintiff to choose a federal court, where there is a choice, cannot be properly denied.'

In the Wadley Southern Railway Company Case, the language of the court is as follows:

'If the Wadley Southern Railway Company had availed itself of the right (the right to test the validity of the requirement in a judicial proceeding) and with reasonable promptness had applied to the court for a judicial review of the order, and if, on such hearing, it had been found to be void, no penalties could have been imposed for past or future violations. If in that proceeding the order had been found to be valid, the carrier would thereafter have been subject to penalties for any subsequent violations of what had thus been judicially established to be a lawful order, though not so in respect to violations prior to such adjudication. But where, as here, after reasonable notice of the making of the order, the carrier failed to resort to the safe, adequate, and available remedy by which it could test in the courts its validity, and preferred to make its defense by attacking the validity of the order when sued for the penalty, it is subject to the penalty when that defense, as here, proved to be unsuccessful.'

See, also, Southwestern Telegraph & Telephone Co. v. Danaher, 238 U.S. 482, 35 Sup.Ct. 886, 59 L.Ed. 1419, L.R.A. 1916A, 1208; St. Louis, Iron Mountain & Southern Railway Co. v. Williams et al., 251 U.S. 63, 40 Sup.Ct. 71, 64 L.Ed. 139.

Although the plaintiff has pursued the proper course for the determination of its rights, the subject of declaring void an act of the General Assembly of a sovereign state is one of such solemn and weighty character as to require unusual consideration upon the part of the court. Such authority should not be exercised unless the court is both vested with the power and charged with the duty of such action. In the instant case, the intervention of the court appears to be equally within the scope of its power and the range of its duty. It is an essential characteristic of a democratic government that its citizens shall equally enjoy the protection of its laws, and that no one shall be deprived of his property without due process of law. Any from of government, therefore, in which an opposite policy prevails or is permitted, is by such fact, in the universal estimation of mankind, characterized as arbitrary and despotic. It is true that theoretically at least a democracy may enact laws as discriminatory and tyrannical as an absolute monarchy, and the modern world is not without striking and tragic examples thereof. Happily, however, a different system prevails in America, and constitutional barriers have been erected by state and nation against any governmental exercise of unfair discrimination against any citizen and against arbitrary confiscation of his property. The duty of protecting all its citizens in the enjoyment of an equality of rights was assumed by each state upon the adoption of its Constitution, and by the Fourteenth Amendment to the United States Constitution it was further agreed by each state that the general government should be vested with the supreme power to protect the citizen against the invasion by any state of this pre-existing right. Civil Rights Cases, 109 U.S. 3, 13, 3 Sup.Ct. 18, 27 L.Ed. 835. And it may be stated that no provision of the original Constitution is more in harmony, than this amendment, with the supreme purpose of that compact as expressed in its preamble:

' * * * to establish justice, insure domestic tranquility * * * promote the general welfare and secure the blessings of liberty.'

There was a time when no individual right of property was recognized or existed, but only at and before the dawn of history, when man was an untutored savage. Later on property was taken without due process of law at the will of the strongest, at a time when might overrode right, but only when tyrants or robber barons assumed the prerogatives of unrestrained and unconstitutional government. Fortunately, such things have not been encountered under out government, however wildly they may be advocated by a certain type of our own citizens and by unrestrained aliens now permitted at large in our midst.

It is apparent that the progress of society demands the proper safeguarding of property as a stimulant to individual initiative and ambition, and it must be even more apparent that individual liberty requires that each person have the equal...

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    ...duties; the carriers affected being viewed as separate units and not as members of a group. See, e.g., Southern Bell Tel. & Tel. Co. v. Town of Calhoun (D.C.) 287 F. 381; Atchison, T. & S.F.R. Co. v. Railroad Commission, 173 Cal. 577, 160 P. 828, 2 A.L.R. 975; Hollywood Chamber of Commerce ......
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