Chesapeake & Potomac Tel. Co. v. Manning, 186 U.S. 238 (1902)

MR. JUSTICE WHITE dissenting:

My dissent is constrained not alone because of an inability to concur in the reasoning contained in the opinion of the Court and the decree based on it, but also because the Court has not decided a question which is necessarily involved in the cause, and which it is essential, in my opinion, to dispose of now in order that justice may be adequately administered. The case is this: the act of Congress of 1898 fixed the rate to be charged for telephone service in the District of Columbia. The plaintiff in error, by whom alone the business of affording telephone facilities was carried on in the District of Columbia, refused to comply with the act of Congress. In other words, the corporation, though it continued to use the public streets and places, without the use of which it could not carry on its business, asserted its right to disregard the act of Congress and to exact from the public rates largely in excess of the limit fixed by Congress. This the corporation claimed the right to do under the assumption that the rates fixed by Congress, if enforced, would prevent it from reaping adequate remuneration, and hence the result would be the confiscation of its right to use its plant, thereby giving rise to the taking of its property without due process of law. Concerning this proposition, in the trial court, voluminous testimony was introduced, and after an elaborate hearing, the court held that the enforcement of the rates fixed by the act of Congress would deprive the company of the right to remuneratively use its plant, and therefore the act of Congress was repugnant to the Constitution. The Court of Appeals of the District reversed the trial court, and held that it was the duty of the corporation, if it continued in business, to conform to the rates fixed by Congress. In reaching this conclusion, the court did not pass on what would be the effect of the rates fixed by Congress if they were put in force, because the court concluded, even although the rates established by the act of Congress would prevent the corporation from reaping adequate reward for the use of its plant, nevertheless the corporation was under the obligation, if it continued its business, to comply with the act of Congress. In effect, the court held, although the corporation was not bound to continue in the business of furnishing telephone facilities, yet if it elected to do so, and therefore used the public ways and streets, the corporation could not lawfully set at defiance the act of Congress. And, reaching this conclusion, as previously stated, the court found it unnecessary to determine what would be the operation of the rates fixed by Congress, and abstained from so doing. The duty which the court thus held rested upon the company was deduced not from general considerations, but from the particular relation of the company to the District of Columbia and the express conditions imposed by Congress in granting to the corporation the use of the streets or in legalizing such use.

The finding of the court on this subject was stated in its opinion as follows, and the accuracy of this statement was not controverted in the argument at bar. The court said:

Congress has passed no act incorporating the defendant, or giving it license to carry on its business in the District of Columbia.

The only recognition that it claims is to be found in certain items and clauses of appropriation bills, beginning with that of July, 1888. In that act, it was provided, after an appropriation for telephone service, that the Commissioners of the District might authorize the wires of any "existing telegraph, telephone, or electric light company now operating in the District of Columbia," to be laid under the streets, alleys, etc.,

whenever in their judgment the public interest may require the exercise of such authority such privileges as may be granted hereunder to be revocable at the will of Congress without compensation.

25 Stat. 323, 324, c. 676.

An item continuing this authority for another term of Congress under the same condition was contained in the Act of March 2, 1889. 25 Stat. 804.

The Act of August 7, 1894, authorized the erection and use of telephone poles in the public alleys, but the privilege was made subject to revocation at the will of Congress without compensation. 28 Stat. 256.

The Act of March 3, 1897, provided that hereafter no wires shall be strung on any alley pole at a height of less than fifty feet from the ground at the point of attachment to said pole, and it was declared that nothing herein contained shall authorize the erection of any additional pole upon any street, avenue, or reservation.

The usual condition of revocation at will without compensation was again added. 29 Stat. 678.

Now this Court, in reversing the decree of the Court of Appeals and remanding the case for a new trial, does not consider or decide the only question upon which the Court of Appeals rested its decree, but, on the contrary, that question is passed by upon the theory that it can be more appropriately decided after a further investigation of the facts to be had on the new trial which the court orders. The action of the Court is sustained in its opinion upon several propositions. Let me briefly consider them.

1. As it is shown, there are various kinds of telephone service, some more complete and more expensive than others, and as the act of Congress does not contain a classification and a fixing of rates embracing all classes of such service, therefore it is decided that the case is not in a condition to be now disposed of finally, but must be remanded for a new trial in order that further testimony on this subject may be taken. But this involves a non sequitur. Conceding in the fullest degree that there are various kinds of telephone service, some more costly than others, and that the classification of the act of Congress does not embrace all kinds of such service, it is submitted that it should be now decided that the act of Congress applies to that which is customary and reasonable, and as to such customary and reasonable service, compliance by the corporation with the act of Congress should be commanded. If it be that the decree below went further than this -- which in my opinion it did not -- then the decree should not be reversed, but should be modified so as to cause it to conform to the act of Congress, and as thus modified it should be affirmed.

2. As the Court finds that there are certain classes of telephones furnished by the company which are for private use and the charge for which Congress has no power to regulate, and as the Court considers the proof as to the revenue derived from this character of telephone is not clear, therefore it is held the case must be remanded to take testimony on this subject. But the testimony in the record on the subject of these private telephones is as full as it can be made on the new trial. The number of such telephones is shown, the revenue received from them is established, and the influence to be produced upon the result of the rates fixed by Congress by the elimination of charges for such telephones is as clear on this record as it can be made in any record which may hereafter come before us for consideration. It follows then, even under the assumption that the limitation upon the power of Congress as to such telephones be well taken, in my opinion no adequate reason is thereby afforded for not deciding the controversy now presented by the record. This is said, of course, under the assumption, arguendo only, that the rule as to private telephones announced by the court is correct.

But putting out of view all these considerations, and conceding that what has been previously said is erroneous, in my judgment the case ought not to be reversed and remanded without deciding the fundamental question which the cause presents which was decided by the Court of Appeals, and which, if the view taken by that court be sound, is controlling. Now that question lies at the very threshold of the case. It is wholly independent of, and cannot in the slightest degree be influenced by, any further investigation of fact which may be made on the new trial which is now ordered. I do not know how to more aptly illustrate the duty which exists to decide this question than by taking into view the situation as disclosed by this record. Certainly since the act of Congress was passed in 1898, the corporation has, in defiance of that act, continued to use for its benefit the public streets and property, and has in doing so imposed upon the public burdens which the corporation had no right to exact if the act of Congress was lawful. Beyond all question, this condition of things must now continue for a long period of time during the progress of the new trial which the court now orders. Let me suppose that, after the new trial, when the record again comes here, the rates as fixed by Congress will be found to be so low that they will compel the corporation to abandon the use of the public ways, and hence go out of business. What will be the duty of the Court then? Will it not be compelled to decide the question which is now left undecided? Let me further assume that then the opinion of this Court will be in accord with that expressed on the case now here by the Court of Appeals. Will it not necessarily follow that the corporation will be held during all the intervening time to have wrongfully violated the act of Congress, and to have unlawfully imposed upon the public? And yet all this wrong and all this abuse which must arise under the hypothesis which has been stated can be absolutely prevented if the Court now decides the question it will necessarily be called upon to decide hereafter. To me it seems clear that it is no answer to this proposition to say that it may be, when the case hereafter is presented for decision, the Court may conclude that the principle upheld by the Court of Appeals was erroneous. Concede this, and yet the duty of now deciding the question appears to me to be equally manifest. I submit, whatever may be the conclusion as to the correctness of the principle announced by the Court of Appeals, that principle can never be overthrown upon the theory that there was no power in Congress to deprive the corporation of the use of the public streets and property without compensation, since in unequivocal and express terms, the various permissions granted by Congress to the corporation to use the public streets provide in language leaving no room for construction that the power was reserved to Congress to revoke at its will and pleasure the right of the corporation to use the streets. It necessarily follows that the view announced by the Court of Appeals can in any event be disregarded only upon the theory that, while power is in Congress to take away the right of the corporation to use the streets without giving it compensation, that an act fixing rates is not the exercise by Congress of such power. But if such be the correct view, then that interpretation, in the interest of a sound administration of the law and for the protection of the public, should be now declared. The reason for this is apparent, because, if such a principle were now announced, admonished by the opinion of this Court, Congress will more advisedly be able to exert such further action as will prevent the corporation from using the public property in disregard of law, and save the public from extortion if it results from charging higher rates than those fixed by the law now under consideration.

While I am not authorized to say that MR. JUSTICE HARLAN and MR. JUSTICE McKENNA concur in the reasons which I have just given for my dissent, they request me to state that they also dissent from the opinion and decree of the Court.