Southern Bell Tel. & Tel. Co. v. Railroad Com'n of South Carolina

• Decision Date: 06 May 1922
• Docket Number: 253.
• Citation: 280 F. 901
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. RAILROAD COMMISSION OF SOUTH CAROLINA et al.
• Court: U.S. Court of Appeals — Fourth Circuit

280 F. 901

SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. RAILROAD COMMISSION OF SOUTH CAROLINA et al.

No. 253.

United States District Court, E.D. South Carolina.

May 6, 1922

[Copyrighted Material Omitted]

Samuel M. Wolfe, Atty. Gen., John M. Daniel, Asst. Atty. Gen Stephen Nettles, of Greenville, S.C., F. A. Miller, of Hartsville, S.C., and D. W. Robinson, of Columbia, S.C., for defendants.

SMITH District Judge.

This cause came on to be heard on the 24th day of April, 1922. It came on to be heard first on the motion made in the cause for a temporary injunction, following an ex parte temporary restraining order already granted. At the same time and place there was heard a motion filed by the defendants to dismiss the complaint for want of equity, and in that the bill of complaint upon its face shows no ground for relief in favor of the complainant against the defendants. Due service has been made upon all parties defendant, and all have appeared by counsel, and counsel have been heard for all parties interested, both upon the motion for an interlocutory injunction and on the motion to dismiss the bill of complaint.

The first matter for consideration is the motion made on behalf of the complainant that the motion for a temporary injunction is one which, under section 266 of the Judicial Code of the United States (Comp. St. Sec. 1243), must be heard before a court of three judges, of whom at least one shall be a justice of the Supreme Court or a circuit judge, and the motion is made to defer the hearing on this motion until the judge of this court shall have time to call to his assistance two other judges and name a date for the hearing.

Section 266 prescribes that any interlocutory injunction suspending or restraining the enforcement, operation, or execution of any statute of the state, by restraining the action of any officer of such state in the enforcement or execution of that statute, or in the enforcement or execution of an order made by an administrative board or commission acting under and pursuant to the statutes of the state, shall not be issued or granted, except after a hearing before three judges provided for in the statute. The bill of complaint in this case is brought to enjoin the Railroad Commission of this state from the enforcement of the act of the state of South Carolina approved April 3, 1922, entitled:

'An act to regulate the maximum price which may be charged by telephone and telegraph companies doing business in this state.'

That act provides in express terms that, from and after the approval of the act by the Governor, no corporation, company, firm, person, or persons owning, operating, or controlling a line or lines of telephone or telegraph in this state shall charge or collect or suffer to be charged or collected for their services a greater price or sum of money or a greater rate than was of legal force and effect on January 1, 1921. The act further provides that any person so forbidden to charge higher rates, violating the provisions of the section, shall be liable to a penalty of $50 for each violation or attempted violation, to be recovered in any court of competent jurisdiction in this state, at the instance and on behalf of the aggrieved party or parties.

There has been no order made by any administrative board or commission, acting under and pursuant to this statute or any other statute of the state, and therefore the bill is not brought to enjoin the enforcement or execution of any such. It must stand upon that part of section 266 which requires any application for an interlocutory injunction suspending or restraining the enforcement, operation, or execution of any statute of the state by restraining the action of any officer of the state in the enforcement or execution of such statute.

An examination of this act approved April 3, 1922, does not show that any officer of the state is authorized to enforce or execute the statute. The enforcement of the statute, so far as this particular statute is concerned, is secured by making the offending party liable to a penalty of $50 for each violation or attempted violation, to be recovered in any court of competent jurisdiction in this state at the instance and on behalf of the aggrieved party or parties. So far as this statute is concerned, the Railroad Commission is not authorized in any wise to enforce it. The enforcement is left to the method provided by a liability to the party or parties aggrieved. The only thing that by this statute the Railroad Commission is required to do is to promulgate, and on request furnish, the schedule of rates existing and effective January 1, 1921. It is evident that this is not meant for an enforcement of the act, but simply for the purpose of giving information to the public as to what were the rates directed by the Legislature. The Legislature, by the statute itself, at once prescribes the schedule of rates. In order that the public making use of the telephone and telegraph service shall be informed as to what are the legal rates, the Railroad Commission, is for the purposes of giving that information, required to have promulgated and on request furnish the information. The commission is not to enforce the act. It is to do nothing but give information of the schedule already existing, and which any member of the public could obtain by application to the office in which that schedule is on file. That is all.

This statute itself does not authorize or empower any officer of the state in any wise to enforce it, and therefore no bill of complaint could lie to restrain the action of any officer of the state from enforcing that which he is not authorized to enforce. A bill to restrain the Railroad Commission from publishing the established rates is not a bill to restrain the enforcement of a statute by an officer under the terms of section 266. A bill might lie to restrain parties aggrieved from enforcing it, so as to put an end to a multiplicity of actions; but that bill would be against those parties, and not against the officers of the state, and would be an application to the court in its general equity jurisdiction for an injunction to put an end to a multiplicity of actions, and would not come under the terms of section 266 of the Judicial Code of the United States.

Counsel for the defense attempt to meet this upon the ground that the Railroad Commission has, by section 3161 of the Code of Laws of South Carolina of 1912, the same powers of enforcement over telephone and telegraph lines that it has over railroads; but that is not the provision of this special statute, which provides its own peculiar remedies for its enforcement, and furthermore, under section 3163 of the Code of Laws of 1912, the Railroad Commission is not given any authority to enforce the provisions of the statute, but it is provided that in the case of the violation of the provisions of law by telephone lines, or the failure or refusal to obey any orders of the commission, such parties shall forfeit and pay as a penalty therefor the sum of $25 per day for each day in default, to be recovered by suit in the name of the state on the relation of any person, firm, or corporation aggrieved, in any county in which such violation or default shall be committed or occur, and the sum so recovered shall, after paying all expenses of such suit, be paid into the treasury of the state, and that it shall be the duty of the Attorney General and of the solicitors of the state, not of the Railroad Commission, to prosecute such suits.

An inspection of the Act of April 3, 1922, shows that the rate or schedule of charges is there fixed directly by the state itself. No action of the Railroad Commission is required, and this bill is brought, not really to restrain any action of the Railroad Commission, but to restrain the enforcement of the tariff or schedule of rates prescribed by the state itself, and for that purpose to restrain a multiplicity of parties from suing for the violations and recovering the penalties prescribed by the statute. It does not appear, therefore, to the court, that the application is for an interlocutory injunction, which under the terms of section 266 of the Judicial Code of the United States requires it to be heard by a court of three.

The court is not unmindful of the directions of the decision of the Supreme Court of the United States in the case of Ex parte Metropolitan Water Co. of West Virginia, 220 U.S. 539, 31 Sup.Ct. 600, 55 L.Ed. 575; but in that case there was no doubt that the action was to restrain the enforcement of a statute of the state, by restraining the action of an officer of the state, and the only point on appeal was that the court below held the act to be constitutional, and not unconstitutional, and refused the temporary injunction, and, so holding, considered that that dispensed with the necessity of calling two judges to the assistance of the presiding judge, which occasion only arose when the court should issue a temporary injunction on the ground that this statute was unconstitutional. It is therefore held that section 266 of the Judicial Code is not applicable to the present application.

For the purpose of this hearing however, the result does not depend upon the application for a temporary injunction. The...