White v. Johnson

• Decision Date: 05 January 1931
• Docket Number: No. 29,29
• Parties: WHITE v. JOHNSON et al
• Court: U.S. Supreme Court

282 U.S. 367

51 S.Ct. 115

75 L.Ed. 388

WHITE

v JOHNSON et al.

No. 29.

Argued Dec. 5, 1930.

Decided Jan. 5, 1931.

Mr. Henry K. Urion, of Chicago, Ill., for Clinton R. White.

Mr. Thomas D. Thacher, Sol. Gen., of Washington, D. C., for Johnson and another.

Mr. Justice ROBERTS delivered the opinion of the Court.

The Circuit Court of Appeals has certified five questions. From the statement of facts contained in the certificate it appears that since August 15, 1926, appellant has owned and operated a radio broadcasting station in Chicago and has had successive licenses from the Secretary of Commerce, and (after the enactment of the Radio Act of 1927 c. 169, 44 Stat. 1162; U. S. Code Supp. III, title 47, § 81 et seq. (47 USCA § 81 et seq.)) from the Federal Radio Commission. Under those from the Commission he at first broadcasted on a wave length of 760 kilocycles with a power of 500 watts, and subsequently on a wave length of 1340 kilocycles with the same power, and was required to divide time with two other stations.

On January 12, 1928, he filed an application for renewal of his then current license, which would expire on September 1, 1928. May 25, 1928, the Commission entered a general order concerning that application and 163 others, stating that it was not satisfied that public interest, convenience or necessity would be served by granting any of them, and fixing a date for a hearing. Each applicant was notified that failing an affirmative showing that public interest, convenience or necessity would be served by granting his application it would be denied. Hearings were had on all the applications. Thereafter, on August 22, 1928, an order was promulgated by the Commission modifying the appellant's existing license by reducing the authorized power to 100 watts, and extending the term to October 1, 1928.

The approximate value of the physical equipment of appellant's station is $5,000. He has expended some $16,000 in its operation. At the time of the Commission's action his net profits were about $400 per week. His equipment will not operate efficiently or satisfactorily at 100 watts. To broadcast with that power he will have to replace a very substantial portion of his present apparatus. The reduction in power will restrict the area which can be served to one-fourth of its former size, and will cause the loss of a large portion of his listening public and advertising clientele.

Although section 16 of the Radio Act of 1927 (U. S. C. Supp. III, title 47, § 96 (47 USCA § 96)) authorized an appeal from the Commission's order to the Court of Appeals of the District of Columbia, it was conceded at bar that appellant took none. He filed a bill quia timet in the United States District Court for the Northern District of Illinois praying that the enforcement of the criminal provisions of the act against him for violation of the order be enjoined; and, upon dismissal of that bill, appealed to the Circuit Court of Appeals for the Seventh Circuit.

The questions certified follow.

Qest ion 1. Did a person who, prior to the enactment of the Radio Act of 1927, applied for and was granted suc- cessive licenses by the Secretary of Commerce for the operation of a broadcasting station, and who owned and continuously operated such broadcasting station, whereby it developed a following of listeners and advertisers which constituted a going business, have or acquire thereby property in the continued operation of such station, with power appropriate to continue the operation of said business, within the meaning of the word 'property' as used in the Fifth Amendment to the Constitution of the United States?

'Question 2. If the answer to Question 1 is in the affirmative, is the Joint Resolution of Congress of December 8th, 1926 valid as against the claim that by virtue of the waiver it requires it works a deprivation of such property without due process of law or a taking of private property for public use without just compensation?

'Question 3. If the answer to Question 1 is in the affirmative, is the Radio Act of 1927, as amended, valid as against the claim that, by virtue of the waiver required in the last paragraph of Section 5 and by virtue of the condition required to be contained in all licenses by subparagraph (A) of Section 11, it works a deprivation of such property without due process of law or a taking of private property for public use without just compensation?

'Question 4. If the answer to Question 1 is in the affirmative, is the Radio Act of 1927, as amended, valid as against the claim that it authorizes or requires the Federal Radio Commission, in its action on an application for renewal of license by a person such as is described in Question 1, to take private property for public use without just compensation, either by denying such application or by granting it on such terms as virtually to destroy a going broadcasting business of such person?

'Question 5. If the answer to Question 1 is in the affirmative, is the Radio Act of 1927, as amended, valid as against the claim that it authorizes or requires the Fed- eral Radio Commission, in acting upon an application for renewal of license by said person, to deprive such person of such property without due process of law, in that the only standards provided by the Act for the guidance of the Commission in acting upon such applications are that of 'public interest, convenience or necessity' and that set forth in Section 5 of the Amendatory Act of March 28, 1928, and in that the Act fails to require that the Commission, prior to proceeding to a hearing or decision on such application, shall specify in what respect it deems or has failed to find that the granting of such application would not serve public interest, convenience or necessity?'

Rule 37 (par. 1) of this Court (28 USCA § 354) provides, inter alia:

'Only questions or propositions of law may be certified, and they must be distinct and definite.'

The court has repeatedly held that it will not answer questions of objectionable generality. United States v. Worley, 281 U. S. 339, 340, 50 S. Ct. 291, 74 L. Ed. 887; United States v. John Barth Co., 276 U. S. 606, 48 S. Ct. 338, 72 L. Ed. 728; United States v. Mayer, 235 U. S. 55, 70, 35 S. Ct. 16, 59 L. Ed. 129; United States v. Northway, 120 U. S. 327, 7 S. Ct. 580, 30 L. Ed. 664. And a...