The Court of Appeals made a complete disposition of the
controversy in this case, and all that was left for the Supreme
Court was the ministerial duty of entering a final injunction in
the language of the preliminary order, with the proviso that it
should operate until such time in the future as the defendant
should voluntarily withdraw from business in the District of
Columbia, and this was clearly a final decree.
Courts always presume that a legislature in enacting statutes
acts advisedly and with full knowledge of the situation, and they
must accept its action as that of a body having full power to act,
and only acting when it has acquired sufficient information to
justify its action.
While a legislature may prescribe regulations for the management
of business of a public nature, even though carried on by private
corporations, with private capital, and for private benefit, the
language of such regulations will not be broadened by
implication.
The decree as directed by the Court of Appeals was erroneous,
and cast a burden upon the defendant to which it was not subjected
by the legislation of Congress.
On July 14, 1898, the appellees commenced this suit in the
Supreme Court of the District of Columbia, to restrain the
defendant from discontinuing its telephone service to them.
Their bill alleged that the defendant was a corporation
organized under the laws of the State of New York, and for a long
time past engaged in the business of furnishing telephone
Page 186 U. S. 239
exchange service in the District of Columbia; that with the
assent and under the direction of the Congress of the United States
and the commissioners of the District of Columbia, it was occupying
the streets, avenues, and alleys of the City of Washington with its
conduits and electric wires; that the plaintiffs had a contract
with the defendant for such service, terminable by either party
upon ten days' notice in writing; that, on July 2, they gave notice
of their intention to terminate such contract. The bill further
alleged the passage by Congress on June 30, 1898, of an act
limiting the charges for telephone service; that they desired to
continue the use of the telephone service furnished by defendant,
and had tendered the amount required to be paid under the act of
Congress, but that nevertheless the defendant threatened to remove
the telephone and its appliances now in the premises of plaintiffs
and to discontinue its telephone service to them.
The defendant answered, admitting its incorporation, its
business of furnishing telephone service, the passage of the act of
Congress, set forth its contract with the complainants and the
correspondence in reference to the termination of the contract, and
alleged that the act of Congress had no application to any
individual desiring telephone service, but only to such service as
might be rendered for the public to the District of Columbia; that,
if it did apply to individuals desiring telephone service the act
was beyond the power of Congress, inasmuch as the rates prescribed
in it were arbitrary, unjust, unreasonable, and unconscionable,
because the service could not be furnished at the rates named
therein without an actual loss to the defendant, thus practically
working a deprivation of its property and property rights without
just compensation or due process of law.
A preliminary injunction was granted restraining the defendant
from removing the telephone and its appliances from the premises of
plaintiffs or discontinuing its telephone service. Other suits of a
similar nature were commenced in the same court by different
parties against the telephone company. An order of consolidation of
all these suits was entered, but the subsequent proceedings were
carried on in this suit, the testimony
Page 186 U. S. 240
introduced being also used in the others, and their disposition
the same as that made of this. A large volume of testimony was
taken, and the case was submitted on pleadings and proofs. On
February 28, 1900, a decree was entered dissolving the preliminary
injunction and dismissing the bill of complaint, with costs. Mr.
Justice Barnard, before whom the case was heard, was of the opinion
that the rates fixed by the act were unreasonably low for the
service and supplies to which they refer, and that therefore the
act could not be sustained. An appeal was taken to the Court of
Appeals of the District, which on May 21, 1901, reversed the decree
of the Supreme Court and remanded the case with instructions to
enter a decree granting the permanent injunction, as prayed for,
but with a single modification. From such decree, the case was
brought to this Court on appeal.
MR. JUSTICE Brewer delivered the opinion of the Court.
A preliminary question is whether the decision of the Court of
Appeals is a final decree. We are of opinion that it is. After
ordering a reversal of the decree of the Supreme Court, it
adds:
"And that this cause be, and the same is hereby, remanded to the
said Supreme Court, for the entry of a decree granting the
injunction in conformity with the opinion of this Court."
The closing sentence of the opinion is as follows:
"For the reasons given the decree will be reversed, with costs,
and the cause remanded for the entry of a decree granting the
injunction in conformity with this opinion."
Prior thereto it is stated:
"Congress could not, and did not, undertake to compel the
defendant to remain in occupation of the field of operations and
carry on business at the imposed rate against its will. "
Page 186 U. S. 241
"If the defendant, convinced that the rate fixed by law is
ruinously low, had suspended its business and abandoned all
operations within the District, Congress would have no power over
it other than to compel it to remove its obstructions from the
streets and other public places. Nor would the courts, in such
event, have any power to compel the defendant to give its services
to any person. But the defendant cannot remain and carry on its
former business in defiance of the law. Persisting in its business,
it must be regarded by the courts as accepting the condition and
coming under obligation to perform its services at the statutory
rate. So persisting and at the same time refusing obedience, it is
within the judicial power to compel defendant to observe the rate
fixed by Congress until such time in the future as it may
voluntarily withdraw from business or Congress may relieve."
"According to this view of the defendant's rights and
obligations, the preliminary injunction was properly granted, and
should have been perpetuated upon final hearing, with the
limitation before suggested."
The preliminary injunction thus referred to by the Court of
Appeals
"
ordered that, upon payment by the complainants to the
defendant of the sum of twelve dollars and fifty cents as one
quarter's rent for the use of the telephone described in their
bill, the defendant, its officers, agents, and employees, be, and
they are hereby, during the pendency of this suit, restrained and
enjoined from removing or attempting to remove from the premises of
the complainants described in the bill of complaint the telephone
and its appliances by said defendant heretofore placed therein, and
from refusing or neglecting to connect the same with other
telephones upon being requested so to do, and from neglecting or
refusing to furnish telephone exchange service to the complainants
for the said telephone in the same manner as it has heretofore
furnished such service."
It thus appears that the Court of Appeals made a complete
disposition of the controversy; that all that was left for the
Supreme Court was the ministerial duty of entering a final
injunction in the language of the preliminary order, with the
proviso that it should operate until such time in the future as the
defendant
Page 186 U. S. 242
should voluntarily withdraw from business in the District.
Clearly this was a final decree.
Tippecanoe County v.
Lucas, 93 U. S. 108;
Bostwick v. Brinkerhoff, 106 U. S. 3, and
cases cited in the opinion;
Mower v. Fletcher,
114 U. S. 127.
We pass, therefore, to a consideration of the merits. The
legislation of Congress appears as a proviso in the District
appropriation act, and is in the following words:
"
Provided, That from and after the passage of this act,
it shall be unlawful for any person or any telephone company doing
business in the District of Columbia to charge or receive more than
fifty dollars per annum for the use of a telephone on a separate
wire; forty dollars for each telephone, there being not more than
two on a wire; thirty dollars for each telephone, there being not
more than three on a wire, and twenty-five dollars for each
telephone, there being four or more on the same wire."
Act of June 30, 1898, 30 Stat. 525, 538, c. 540.
In its answer, defendant pleaded that this legislation
"has no application to any individual desiring telephone
service, but applies only to such service as may be rendered for
the public to the District of Columbia, for the service rendered to
said District for fire alarm, police, and other public
purposes."
This defense is undoubtedly based on the fact that the paragraph
in which this proviso is found, entitled "telegraph and telephone
service," consists solely of appropriations for salaries and
supplies in connection with telegraph and telephone service. As the
paragraph therefore deals solely with public expenditures, the
contention is that the proviso is a qualification of such public
expenditures. As said by Mr. Justice Story in
Minis v.
United States, 15 Pet. 423,
40 U. S.
445:
"The office of a proviso, generally, is either to accept
something from the enacting clause, or to qualify or restrain its
generality, or to exclude some possible ground of misinterpretation
of it, as extending to cases not intended by the legislature to be
brought within its purview."
See also Austin v. United States, 155 U.
S. 417,
155 U. S.
431.
While this is the general effect of a proviso, yet in practice
it is not always so limited. As said in
Georgia Banking Company
v. Smith, 128 U. S. 174,
128 U. S.
181:
Page 186 U. S. 243
"The general purpose of a proviso, as is well known, is to
except the clause covered by it from the general provisions of a
statute, or from some provisions of it, or to qualify the operation
of the statute in some particular. But it is often used in other
senses. It is a common practice in legislative proceedings, on the
consideration of bills, for parties desirous of securing amendments
to them to precede their proposed amendments with the term
'provided' so as to declare that, notwithstanding existing
provisions, the one thus expressed is to prevail, thus having no
greater signification than would be attached to the conjunction
'but' or 'and' in the same place, and simply serving to separate or
distinguish the different paragraphs or sentences."
In view of the general language of this proviso, it is not
strange that appellant has not pressed this defense upon our
consideration, and we are informed by counsel for the appellee that
it was not called to the attention of the lower courts. We notice
it only as leading up to a matter which is now presented. It
appears by a stipulation of counsel that, on February 1, 1898,
while the District of Columbia appropriation act was pending in the
House of Representatives, it was amended by adding the proviso in
question. The amendment was not reported from any committee. The
bill passed the House, February 2, and was thereupon sent to the
Senate. On March 2, 1898, the committee on appropriations of the
Senate reported the bill back to the Senate, recommending that the
proviso be stricken out. This recommendation was rejected by the
Senate on March 8, and the bill on that day passed. On the ninth
day of March, on account of differences in respect to other parts
of the bill, it was sent to a committee of conference. Prior to the
passage of the act, no investigation or inquiry was made by or at
the instance of either House of Congress for the purpose of
determining what would be fair and reasonable rates for telephone
services in the District of Columbia, except as follows: on
February 14, 1898, twelve days after the bill had passed the House
and been sent to the Senate, the House adopted a resolution
empowering a committee, appointed to investigate gas service in the
District of Columbia, to investigate charges
Page 186 U. S. 244
for telephone service. On March 9, the committee began this
investigation. On July 8, the committee reported the testimony they
had taken, and asked to be continued with full powers and leave to
sit in vacation, and report at the next session of Congress. The
same day, the House adjourned
sine die without taking any
action upon the recommendation of the committee. On February 28,
the Senate passed a resolution authorizing the Committee on the
District of Columbia to investigate charges for telephone service,
and on the second of March, a further resolution for the payment of
expert accountants and stenographers. Immediately thereafter, the
committee, by a subcommittee, prepared to enter upon an
investigation, and requested an expert accountant to examine the
books of the defendant. On the eighth of March, after the Senate
had rejected the amendment offered by the committee to strike out
the proviso, the committee was discharged from further
consideration of the matter. The act passed both Houses and was
approved June 30. Now this quotation is made from the opinion in
Chicago &c. Railroad Company v. Minnesota,
134 U. S. 418,
134 U. S.
458:
"The question of the reasonableness of a rate of charge for
transportation by a railroad company, involving as it does the
element of reasonableness both as regards the company and as
regards the public, is eminently a question for judicial
investigation, requiring due process of law for its determination.
If the company is deprived of the power of charging reasonable
rates for the use of its property, and such deprivation takes place
in the absence of an investigation by judicial machinery, it is
deprived of the lawful use of its property, and thus, in substance
and effect, of the property itself, without due process of law, and
in violation of the Constitution of the United States."
And upon it counsel for the company make these observations:
"And if the legislature cannot authorize a commission to fix
rates without giving the corporations interested an opportunity to
be heard, it is hard to see how the legislature itself can do so,
not only without giving an opportunity for a hearing, but, as is
admitted to be the fact in this case, without making even any
ex parte investigation. "
Page 186 U. S. 245
But it is well settled that the courts always presume that the
legislature acts advisedly and with full knowledge of the
situation. Such knowledge can be acquired in other ways than by the
formal investigation of a committee, and courts cannot inquire how
the legislature obtained its knowledge. They must accept its action
as that of a body having full power to act, and only acting when it
has acquired sufficient information to justify its action. Of
course, whether a particular act was passed by Congress does not at
all depend upon facts like these. In
Field v. Clark,
143 U. S. 649,
143 U. S. 672,
it was said:
"The signing by the Speaker of the House of Representatives, and
by the President of the Senate, in open session, of an enrolled
bill, is an official attestation by the two Houses of such bill as
one that has passed Congress. It is a declaration by the two
Houses, through their presiding officers, to the President, that a
bill, thus attested, has received, in due form, the sanction of the
legislative branch of the government, and that it is delivered to
him in obedience to the constitutional requirement that all bills
which pass Congress shall be presented to him. And when a bill,
thus attested, receives his approval, and is deposited in the
public archives, its authentication as a bill that has passed
Congress should be deemed complete and unimpeachable."
But while the conclusiveness of the authentication of the due
passage of this act is in no manner impaired by the facts
disclosed, yet those facts may be considered in determining what is
the meaning and scope of the act. In
Blake v.
National Bank, 23 Wall. 307,
90 U. S. 319,
where there was a question as to the meaning of a statute
containing apparently contradictory provisions, it was said:
"Under these circumstances, we are compelled to ascertain the
legislative intention by a recurrence to the mode in which the
embarrassing words were introduced, as shown by the journals and
records, and by giving such construction to the statute as we
believe will carry out the intentions of Congress."
Again, in
Platt v. Union Pacific Railroad Company,
99 U. S. 48, this
rule was laid down:
"But, in endeavoring to ascertain what the Congress of 1862
Page 186 U. S. 246
intended, we must, as far as possible, place ourselves in the
light that Congress enjoyed, look at things as they appeared to it,
and discover its purpose from the language used in connection with
the attending circumstances."
And again, in
Holy Trinity Church v. United States,
143 U. S. 457,
143 U. S. 464,
reference was made to the reports of committees of each house with
a view of ascertaining the purpose of Congress in the statute then
in question.
So, while we may not infer from the mere fact that the
committees of investigation never completed their work that
Congress acted unadvisedly, yet, as each body authorized a full
investigation by a committee, and, before a report was received
from such committee, took the action which it did, it is fairly
open for consideration whether the general language found in this
proviso is not subject to some limitations or qualifications. In
other words, did Congress intend to cover the whole field of
telephone service, wherein it was then carrying on an appropriate
but unfinished investigation, or was it content with making a
limited provision for the present, leaving to future consideration
the question of additional legislation? Defendant pleaded that the
proviso applied simply to "services rendered for the public to the
District of Columbia." But it is difficult to find this limitation
suggested by either its terms or its place in the statute. The
prohibition is upon any person or any telephone company doing
business in the District, and against charging or receiving more
than fifty dollars per annum for the use of a telephone on a
separate wire, etc. The language is general, and it is not easy to
read in it a qualification or limitation upon the prior portion of
the paragraph, to-wit, that portion appropriating money for
salaries and supplies, no part of such salaries and supplies going
to the telephone company.
We pass, then, to inquire whether any other limitation or
qualification of the prohibition found in this proviso may fairly
be read in its language. And we start with the proposition that it
cannot be presumed that a legislature intends any interference with
purely private business. It cannot ordinarily prescribe what an
individual or corporation, engaged in a purely private business,
shall charge for services, and therefore,
Page 186 U. S. 247
although the language of a statute may be broad enough to
include such private business, it will generally be excepted
therefrom in order to remove all doubts of the validity of the
legislation. It appears that some portion of the defendant's
business is of a purely private nature, the receipts whereof are
spoken of in its reports as private rentals, and as to such
business Congress could not, if it would, prescribe what shall be
charged therefor. In many buildings, both those belonging to the
government or the District and those belonging to private
individuals, is what may be called a local telephone plant -- that
is, an arrangement of telephones by which parties in different
rooms can communicate with each other -- a system which is not
connected with the general telephone exchange, and is no more
public in its nature than the speaking tubes or call bells in a
building. It is only for the personal use of parties in the
building. By it, those in the building cannot communicate with the
general public, nor can such public reach parties in the building.
It is simply a local convenience for the use solely of those who
are in the building. Such combinations of telephone instruments in
a single building, with no outside connections, are furnished by
the defendant, and the rentals therefrom, as well as the expenses
thereof, are entered in its books of account and constitute a part
of its business. The mere fact that such telephones are furnished
by the company, which also does a public business, does not make
them a part of such public business, or subject them to the
regulation by Congress of its charges. A railroad company may, if
authorized by its charter, carry on not simply its strictly
railroad business, but also an establishment for the manufacture of
cars and locomotives. The fact that it is engaged in these two
different works would not, in itself, subject the manufacture of
cars and locomotives to the supervision of the legislature although
such body would have the right to regulate the charges for railroad
transportation. So, in an inquiry into the reasonableness of the
charges imposed by Congress in this legislation, it is essential
that the receipts and expenses from such private telephone systems
be excluded from consideration. It may be that the trial court did
not take these receipts and expenses
Page 186 U. S. 248
into consideration, but we refer to them because they are
referred to in the testimony of some of the witnesses, and, unless
guarded against, might be taken into account in the further
investigation of this case.
Again, while a legislature may prescribe regulations for the
management of business of a public nature, even though carried on
by private corporations with private capital and for private
benefit, the language of such regulations will not be broadened by
implication. In other words, there is no presumption of an intent
to interfere with the management by a private corporation of its
property any further than the public interests require, and so no
interference will be adjudged beyond the clear letter of the
statute. Here, the prohibition is against charging or receiving
"more than fifty dollars per annum for the use of a telephone on a
separate wire." What kind of a telephone service is contemplated,
and how much goes with the telephone? It appears from the testimony
that there are two kinds of equipment, one more expensive and more
reliable than the other; that some of the company's subscribers are
using the cheaper and inferior equipment. Was the statutory
limitation of fifty dollars per annum intended as the limit for the
superior or the inferior equipment? It also appears from the
testimony that the defendant furnishes to some of its customers,
besides the mere telephone, such additional equipment as wall
cabinet, desk auxiliary bells, etc., for which separate charges are
made. Doubtless these additional appliances facilitate and tend to
make more convenient and easy the business of telephoning, but they
are not included in the terms of the statute, and all that is
required by its language is the furnishing of the telephone. What
equipment and appliances are essential and what only matters of
convenience may not be clearly shown by the evidence, but obviously
there can be no difficulty in securing proof thereof. Suppose, for
instance, a legislature should prescribe the rates for the carriage
of passengers by a railroad. If the language was limited to the
mere transportation of the passengers, it would not be held to
include accommodations in a sleeper, although such sleeper belonged
to the company and was used on its trains. Of course, if the
statute in terms prescribed
Page 186 U. S. 249
charges for transportation carried on in the manner that it had
been carried on, it might include all the conveniences which had
been theretofore furnished by the company, but when the statute
simply prescribes a rate for transportation, it will include only
the ordinary and necessary facilities for such transportation, and
not those conveniences which make travel more comfortable. So here,
if this statute had in terms prescribed that the company should
furnish the same conveniences and facilities for carrying on the
telephone business that it had been wont to do in the past, it
would be held to mean the equipment heretofore used and to include
all these auxiliary matters, but when it is limited to the "use of
a telephone," the courts cannot extend it beyond its terms and hold
the statute to include things not named therein. The order which
was directed by the Court of Appeals was one restraining and
enjoining the defendant from removing from the premises of the
complainant
"the telephone and its appliances by said defendant heretofore
placed therein, and from refusing or neglecting to connect the same
with other telephones upon being requested so to do, and from
neglecting or refusing to furnish telephone exchange service to the
complainants for the said telephone in the same manner as it has
heretofore furnished such service."
In other words, the decree directed the defendant to furnish,
for fifty dollars per annum, the equipment with all the facilities
and appliances which it had theretofore furnished, including not
merely the telephone on the separate wire, but the auxiliary
matters heretofore referred to.
It may be that Congress, legislating simply for the use of the
telephone, felt that the information it already possessed was
sufficient to justify it in prescribing a reasonable charge
therefor at least for the inferior equipment, and did not wait for
a full investigation in respect to the value of the use of the best
equipment together with all these auxiliary matters. It may be
that, if all these matters are taken into account, and are within
the purview of the statute, the conclusion of the trial judge was
right, that no reasonable remuneration was furnished by the rates
prescribed, whereas it may be that, excluding them, it will be
evident beyond question that the charges prescribed
Page 186 U. S. 250
are reasonable and just. At any rate, the decree as directed by
the Court of Appeals was erroneous, and cast a burden upon the
defendant to which it was not subjected by the legislation of
Congress.
Before closing the opinion, one thing must be referred to. The
Court of Appeals, not entering into any full inquiry as to the
reasonableness of the charges, held that Congress had a right to
prescribe them, whether reasonable or unreasonable, and that, if in
fact unreasonable and unremunerative, the only recourse of
defendant was to retire from its business. This involves a question
of constitutional law of great importance, upon which we at present
express no opinion. The future investigation may relieve from any
necessity of considering it. At any rate, it is well to have the
facts settled before we attempt to determine the applicable law.
And the facts should be settled by the trial court.
In
Chicago, Milwaukee &c. Railway v. Tompkins,
176 U. S. 167,
176 U. S. 179,
a case involving the validity of railroad rates established by a
commission in the State of South Dakota, and in which we found that
there had been error in the methods pursued by the trial court for
determining the question of reasonableness, we said:
"The question then arises, what disposition of the case shall
this Court make? Ought we to examine the testimony, find the facts,
and from those facts deduce the proper conclusion? It would
doubtless be within the competency of this Court on an appeal in
equity to do this, but we are constrained to think that it would
not (particularly in a case like the present) be the proper course
to pursue. This is an appellate court, and parties have a right to
a determination of the facts in the first instance by the trial
court. Doubtless if such determination is challenged on appeal it
becomes our duty to examine the testimony and see if it sustains
the findings, but if the facts found are not challenged by either
party then this Court need not go beyond its ordinary appellate
duty of considering whether such facts justified the decree. We
think this is one of those cases in which it is especially
important that there should be a full and clear finding of the
facts by the trial court. The questions
Page 186 U. S. 251
are difficult, the interests are vast, and therefore the aid of
the trial court should be had."
In
Kansas v. Colorado, 185 U.
S. 125, the questions before us arose on demurrer to the
bill. We declined to enter into any determination of the law based
upon the allegations of the bill, but overruled the demurrer and
required the parties to introduce the testimony in order that the
real facts might be presented before any determination was had in
respect to the law, saying at the close of the opinion:
"The result is that, in view of the intricate questions arising
on the record, we are constrained to forbear proceeding until all
the facts are before us on the evidence."
It may be that in this case further evidence may be needed, and,
if so, the trial court may provide therefor.
The decree of the Court of Appeals is reversed, and the case
remanded to that court, with directions to remand the cause to the
Supreme Court of the District of Columbia with instructions to that
court to set aside its decree and inquire as to the reasonableness
of the rates in the light of the construction we have given to the
statute.
Reversed.
MR. JUSTICE GRAY and MR. JUSTICE BROWN did not hear the
argument, and took no part in the decision of this case.
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,
Page 186 U. S. 252
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
Page 186 U. S. 253
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
Page 186 U. S. 254
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
Page 186 U. S. 255
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
Page 186 U. S. 256
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.