Opposition Brief — Southwestern Bell Telephone Co. v. Lee

5 FB Rem Per = “a

SUPREME COURT OF THE UNITED| SPATES

OCTOBER TERM, 1940

No. 300

SOUTHWESTERN BELL TELEPHONE COMPANY,

Appellant,

vs.

S. B. HANNA.

APPEAL FROM THE SUPREME COURT OF THE STATE OF ARKANSAS.

STATEMENT OPPOSING JURISDICTION AND

MOTION TO DISMISS.

Joun Mayes,

Rex W. Perkins,

G. T. Suturins,

\ Cuarzes D. ATKINSON,

Counsel for Appellee.

re

INDEX.

Sussect INpDEx.

0S CP RT Po tw oe eee eee 1

Tasie or Cases Crrep.

Adams v. Russell, 229 U. S. 353... 6.6.66 eee 7

Brown v. Atwell, 92 U. 8. 327...........--- +. +55: 7

Consolidated Turnpike Co. v. Norfolk, 228 U.S. 326. )

Danaher v. S. W. Tel. & Tel. Co., 137 Ark. 324...... 12

Honeyman v. Hanan, 300 U. 8. 14............- 0. 7

Lynch et al. v. New York ex rel. Pierson, 293 U. 8.

ee a ee ee ore eee eee Ce eee 7

New York City v. Central Sav. Bank, 306 U. S. 661.. 7

Quong Ham Wah Co. v. Comm., 255 U. S. 445...... 4

St. Louis, etc., R. Co. v. Shepherd, 240 U. S. 240..... 9

Seaboard Air Line R. Co. v. Watson, 287 U. S. 86... s

Southwestern Bell Telephone Co. v. Lee et al., 140

SA”). eee 5

Southwestern Bell Telephone Co. v. Matlock, 195

ee nai iaiies ee tecteuepsvenevivesns 11

Southwestern Bell Telephone Co. v. Oklahoma, 303

3 2” eer rr errr) ete eke 7

Southwestern Tel. & Tel. v. Danaher, 238 U. S.

"2G A Air ereye a TL kT te ee eee 12

Southwestern Tel. & Tel. v. Sharpe € White, 118 Ark.

oe eh Aa weth Rhee ere eae bes ys ears 13

U.S. F. & G. v. Oklahoma, 250 U.8.111....... ap 4

Vandalia R. Co. v. Indiana, 207 U. 8. 359........... 7

Waters-Pierce Oil Co. v. Texas, 212 U. = oa. .... ; i)

Whitney v. California, 274 U. ee vitn eb. 7

Zucht v. King, 260 U. S.174........--- essere 4

Srarutes CrrTep.

Pope’s Digests of the Statutes of Arkansas:

Geos, TIZI-BIDE . 5... 6. cece eee 11

ee eer re eee eee 2, 4, 10, 11, 12

Public Utilities Act of Arkansas............-----: 5

United States Code Annotated, Title 28:

Section BA4B .......- eee eee res 2, 4, 8,15

Gestion B44b ........--- ee cree cere eee tees 2, 4, 8, 15

—9324

—

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1940

No. 300

SOUTHWESTERN BELL TELEPHONE COMPANY,

Appellant,

vs.

S. B. HANNA.

Appellee.

OPPOSING STATEMENT BY APPELLEE AS TO

BASIS OF JURISDICTION AND MOTION TO DIS-

MISS THE APPEAL.

—

Pursuant to Rule 12, subdivision 3, of the General Rules

of the Supreme Court of the United States, appellee files

this, his statement of grounds making against the assertion

of jurisdiction by the United States Supreme Court in the

premises.

It appears from the record of the judgment and cause

sought to be reviewed herein as well as by the statement

as to the basis of jurisdiction filed by appellant herein, that

no Federal question was involved or decided, inasmuch as

said judgment was rendered by the trial court in the first

instance, and affirmed by the Supreme Court of Arkansas,

pursuant to the verdict of the jury, based solely upon the

factual issue of discrimination, wherein was contained no

2

Federal question of any nature whatsoever; and therefore

no jurisdiction exists in this Court, no matter how invoked,

to review the said judgment.

That no treaty or statute of the United States was de-

clared invalid; and no statute of any State was declared

valid in the face of any attack thereon on the ground of its

being repugnant to the Constitution, treaties or laws of the

United States ; and, therefore, under the provisions of Title

28, U.S. C. A., Section 344 (a), no jurisdiction for review

of said judgment exists in this Court.

That there was not drawn into question the validity of

any treaty or statute of the United States, nor of any statute

of any State on the ground of its being repugnant to the

Constitution treaties or laws of the United States; nor was

there specially set up or claimed by either party hereto

any title, right, privilege or immunity under the Constitu-

tion, or any treaty or statute of, or commission held or au-

thority exercised under the United States; and, therefore,

under the provisions of Title 28, U.S. C. A., Section 344 (b),

no jurisdiction for a review of said judgment exists in this

Court.

Appellee is not unmindful of the fact that by the simple

assertion of the non-existence of a Federal question in this

case, he has practically exhausted his persuasive powers

in this respect. The case is now before this Court on ap-

peal, and speaks for itself far more effectively than can

counsel. However, to the end that the Court may be made

more fully cognizant of appellee’s exact position, he offers

the following in support of his major premise—the absence

of a Federal question.

This case was commenced under Section 14261 of Pope’s

Digest of the Statutes of Arkansas, which reads as follows:

‘‘Every telephone company doing business in this

State and engaged in a general telephone business shall

3

supply all applicants for telephone connection and fa-

cilities, without discrimination or partiality, within ten

days after written demand therefor; provided, such

applicants comply or offer to comply with the reason-

able regulations of the company, and no such company

shall impose any condition or restriction upon any such

applicant that are (is) not imposed impartially upon

all persons or companies in like situations; nor shall

such company discriminate against any individual or

company engaged in lawful business by requiring as

condition for furnishing such facilities that they shall

not be used in the business of the applicant, or other-

wise, under penalty of one hundred dollars and five dol-

lars per day for each day from the expiration of such

notice until said demand is complied with or suit is in-

stituted for failure to comply with such demand, for

such discrimination, after compliance or offer to com-

ply with the reasonable regulations and time to furnish

the same has elapsed, to be recovered by the applicant

whose application is so neglected or refused. Any per-

son denied such telephone facilities shall also have the

right to proceed by mandamus or other proper remedy

to enforce the furnishing of same, and the courts shall

hear such applications either in vacation or term time

and make such temporary orders relative to the fur-

nishing of such facilities as the facts may justify, and

may enforce compliance therewith until such orders are

vacated by order of the court or judge at chambers, or

such suit is finally determined.’’

Under the clear terms of this statute, appellee must have

established two things before he would be entitled to re-

cover the penalties provided; (1) that there had existed,

as between himself and others in like situation with him, a

discrimination against him practiced by appellant; (2)

that upon his demand for service he had complied or offered

to comply with the reasonable rules of appellant.

From their very nature, these questions were, and could

be only questions of pure fact, the decision of which de-

TT

volved upon, and were conclusively answered by, the jury.

This then, is the whole case. The relevant statute quoted

above, was never attacked by appellant as being unconsti-

tutional under the Federal Constitution, and for this rea-

son, it may not be said that its validity was sustained by

the Arkansas Supreme Court, in the sense as used in 28

U.S. C., See. 344 (a) or (b), supra. Further, no title, right,

privilege or immunity was ever set up by appellant, under

the Constitution or laws of the United States, up to and in-

cluding the final judgment of the Arkansas Supreme Court,

in the sense as used in 28 U. 8. C., See. 344 (b).

The only conclusion possible is that there simply is not

any Federal question in this case. It follows that regard-

less of how impressively formal may be the assignments of

error in this regard by appellant, this Court has no juris-

diction to review the judgment. Zucht v. King, 260 U. 8.

174; Quong Ham Wah Co. v. Cummsn., 255 U. 8. 445; U. 8.

F. & G. v. Oklahoma, 250 U. 8. 111.

It is not entirely clear from appellant’s assignment of

error or its statement in support of jurisdiction, just what

is the basis of its claim of Federal jurisdiction—whether it

be because the statute, Section 14261 was held invalid, or

because appellant’s rule V-c was held unreasonable, or both.

In any event, appellant’s claim is ineffectual. As pointed

out above the discrimination statute was never attacked, and

in truth was never even ‘‘construed”’ by the Supreme Court

of Arkansas, simply because no construction was necessary.

If the Arkansas Court’s alleged ruling on appellant’s rule

V-c be the gravamen of the latter’s complaint herein, this,

likewise avails appellant naught. Appellant admits ( page

1, appellant’s Statement in support of Jurisdiction) that the

rule V-c is its own rule, and not that of the Arkansas De-

partment of Public Utilities. Therefore, in holding the rule

unreasonable (if it did such) the Arkansas court was not

invalidating the order of any State legislative body, nor act-

4

5

ing in a legislative capacity, since only appellant had made

this rule. Further, the Department of Public Utilities did

not make the rule its own, but only ordered an impartial en-

forcement of it. This is the very thing that the jury in the

trial court, and the Supreme Court of Arkansas found ap-

pellant had not done. Therefore, no repugnance exists be-

tween the positions taken by the Arkansas court and the

Department of Public Utilities.

A further interesting observation relative to this rule

V-c may be made at this point. Appellant has much to say

concerning the absence of any notice and hearing afforded it

as to the reasonableness of the rule, and hinges thereon its

claim of property deprivation. The answer is simple. No

notice and hearing was provided, for the reason that none

was necessary; the rule was not being, and has never been,

attacked by appellee. Indeed, appellee has always offered

to comply with this very rule. And here in passing, it might

be noted that appellant’s cited ‘‘due process’’ cases are

accordingly not pertinent in this case. Finally, it is exeeed-

ingly doubtful that the Arkansas court did in fact declare

rule V-c unreasonable per se. And even if it did so, appel-

lee submits that the court’s language in that respect is

purely dictum, and may therefore not be employed by

appellant to support an alleged Federal question so as to

confer jurisdiction upon this Court.

Let us see. After quoting the rule in full (140 8. W. 2d

133-134), which requires only that the instrument be located

in a place not accessible for public use, the court continues

(pp. 134-135): ‘‘It is her (appellee’s) contention * * *

that she offered to comply with the reasonable rules and

regulations of the company, even including the requirement

that the telephone be placed under a counter, in a showcase,

or in acompartment. The dispute in this regard is that the

telephone company insists now that it was not installed

because she did not agree or promise to refuse permission

6

to use the telephone in a new location, though she

did agree to conform with all reasonable rules and regula-

tions of the company. No examination of the foregoing rule

will disclose that she should act as a guard for the telephone

company to prevent the use of the telephone, nor is there

anything in this entire record * * ° indicating * * *

agrantof power * * * tothe telephone company to exact

a promise from her, in addition to the one to abide by the

reasonable rules and regulations of the company.’’

Elsewhere in the opinion, the court finds, as it must have

done, that the issue of appellee’s offer to comply with the

reasonable regulations (including rule V-c) of appellant had

been settled in appellee’s favor by the jury’s finding, as like-

wise on the primary factual issue of discrimination. It ap-

pears therefore, that the court’s opinion was based purely

on confirmation of the factual question presented to it, and

that its holding as to rule V-c was only dictum; and fur-

ther, even if more than dictum, it is a holding only that the

application, or unauthorized extension of the rule by appel-

lant was bad, and not that the rule itself is invalid. It fol-

lows logically then, that no Federal question is presented

or could be presented on this appeal, and that even if by

some manner of legal legerdemain such a question could be

conjured up, the decision thereof was not essential to the

judgment of the Arkansas court.

Appellee cannot too strongly urge upon the sensibilities

of this Court this one essential point: That this case was not

instituted nor decided on the basis of any rule of service

(rule V-c or otherwise), but purely on the theory of dis-

crimination, a factual concept, which was decided and con-

cluded by the jury. The decision of the Arkansas Supreme

Court does not hold otherwise. Accordingly, no Federal

question is present here.

But even if for purposes of argument, it be assumed that

a Federal question did arise, still, that portion of the Arkan-

.. |

sas court’s opinion relative to rule V-c is only dictum, and

was not necessary to its opinion and decision because the

reasonableness of the rule was never traversed. The

legal rule in this respect is well settled. It is essential that

the decision of the State court of necessity involve @ deter-

mination of the Federal question. It must appear affir-

matively that the court could not have decided as it did

unless it had decided the Federal question, and that such

decision was not in any sense obiter. Brown v. Atwell, 92

U. S. 327; Vandalia R. Co. v. Indiana, 207 U. 8. 359; Adams

y. Russell, 229 U. 8S. 353; Whitney v. California, 274 U. Ss.

357 ; Lynch et al. v. New York, ex rel. Pierson, 293 U. 8. 52;

Honeyman v. Hanan, 300 U. S. 14; S. W. Bell Tel. Co. v.

Oklahoma, 303 U. 8. 206.

Hand in hand with the foregoing rule relative to dictum,

is the rule of equal authority, that if the decision of the

State court rests upon non-Federal grounds adequate to

support it, this Court will refuse jurisdiction, even though

a Federal question be actually involved. Lynch v. New York,

ox rel. Pierson, supra; New York City et al. v. Central Sav.

Bank, 306 U. S. 661.

So here, even conceding appellant its vainly striven for

Federal question (and bear in mind, appellee is nowhere

recognizing this), it becomes apparent that the decision of

the alleged Federal question was in no way essential to the

opinion of the Arkansas court, and also that there existed

an adequate non-Federal ground on which to base the

court’s opinion, i. ¢., the factual issue of discrimination.

How much more tenuous and unreal, therefore, is the sug-

gested jurisdiction of this Court, in view of the fact that

there exists herein no Federal question at all.

Another defect : Appellant’s supposed bases for the juris-

diction of this Court are shot through with vagueness and

non-particularity. The burden of appellant’s complaint

throughout its assignments of error and statement in sup-

8

port of jurisdiction, when summed up, amounts to no more

than a claim that the Arkansas court erred in not reversing

the judgment of the trial court, because the scope and effect

of the discrimination statute, section 14261, supra, deprived

appellant of its property in violation both of due process

and equal protection clauses. As hereinbefore observed,

it is difficult to ascertain just what appellant is driving at,

inasmuch as it skips from section 14261 to rule V-c, and

back again, and finally winds up by asserting both. It is

plain then, that the constitutional question raised is frivo-

lous, unsubstantial, indefinite and fictitious, and thus pre-

sents no question for this Court's consideration. Seaboard

Air Line R. Co. v. Watson, 287 U.S. 86.

Finally, sweeping aside the requirements that there be a

Federal question; that it be substantial, that it must neces-

sarily have been decided by the State court; and sweeping

aside the requirements of 28 U. S. C. Sec. 344 (a) and (b),

appellee submits that this question, whatever be its nature,

this thing appellant relies upon, has been set up too late.

To urge npon this Court a jurisdiction based upon a ques-

tion raised for the first time in its petition for rehearing

to the State Supreme Court, is but the last gasping effort

of an unwilling litigant to avoid answering for its mistaken

policies. If appellant conceived the existence of a Federal

question in this case, the time to have asserted it was at

the trial of this case in cireuit court. Appellee brought his

action under Section 14261. Rule V-e was not in his mind

in connection with this suit save that he had offered to

comply with it, as he must have done under the statute.

Why, therefore, did not appellant complain then of the

statute? Confronted with such an action, why did not

appellant then assert its Federal question? Why? Be-

cause no Federal question existed; because no construction

of this statute was contemplated or was necessary ; because

no Federal question has ever existed in this case. To come

—

now and invoke the jurisdiction of this Court, on the ground

that there exists a Federal question, when appellant never

thought of such a thing until its petition for rehearing in

the Arkansas Supreme Court, is in itself, almost a confes-

sion of ‘‘no jurisdiction’. Consolidated Turnpike Co. v.

Norfolk, 228 U. S. 326; Waters-Pierce Oil Co. v. Texas,

912 U. S. 112; St. Louis, etc. R. Co. v. Shepherd, 240 U. 8.

240.

Appellee would at this point beg the Court’s indulgence

for the length and formal unorthodoxy of this statement

against jurisdiction, and motion to dismiss the appeal. But

appellant’s pleadings and papers herein are so involved

and so adroitly worded that it is incumbent upon counsel

for appellee to answer a number of appellant’s statements

and assertions, in order, not only that appellee’s cause be

well and truly advocated, but also that this Court may

not be misled by suavity of language or subtlety of in-

nuendo.

On page 2 of appellant’s statement in support of juris-

diction, it is stated that the plaintiff (appellee here) de-

manded semi-public telephone service at the rate provided

for the more restricted customer classification—the latter

being the type of service to which rule V-c would apply.

This statement is wholly and absolutely incorrect. Let the

record speak in answer to this assertion of appellant (R.

2, 3,4). The only type of service ever requested by appel-

lee was that type variously denominated as ‘‘customer serv-

ice’’, or “straight or regular business telephone service’’

at the lawful rate of $3.50 per month, Appellee has never

requested that service be provided him at less than pre-

scribed rates.

On page 3 of appellant’s Statement, it is asserted that

plaintiff’s claim at the trial was that because other per-

sons were receiving semi-public service at the lower cus-

tomer service rate, he too was entitled to such service, and

9

10

that appellant’s refusal to ‘‘violate the Utilities Act in his

case’’ subjected appellant to the penalties of Section 14261.

This assertion is likewise wholly and absolutely untrue.

While it may well be that such a situation was a discrimi-

nation in fact against appellee, such was not relied upon

by appellee nor ever advanced by him in support of his

action. The whole theory of appellee’s case was that he

had been unlawfully discriminated against because appel-

lant had failed and refused to furnish him with any service

whatsoever, whereas others in like situation with him were

given service. Never, at any time did appellee demand that

appellant violate the Utilities Act in his favor by extending

to him standard service at a less-than-legal rate.

It was upon this theory of appellee’s case that the jury

found discrimination and upon which the Supreme Court

of Arkansas affirmed the judgment beiow. Appellant would

have this Court believe that the case was affirmed because

the Arkansas court held rule V-c unreasonable upon collat-

eral attack. Appellee has hereinbefore demonstrated the

transparency of this argument. Here was no collateral

attack. The plain truth is that penalties were assessed

against appellant, not because the rule was or was not un-

reasonable, but because appellant had been guilty of dis-

crimination, wholly dehors the rule. The alleged collateral

attack is non-existent, for the reason that no attack was

ever made upon the rule at any stage of the case. The re-

marks of the Arkansas Supreme Court, though perhaps

richly deserved by appellant, were no more than that tribu-

nal’s opinion about something which was not before it—in

short, its language is dictum.

Throughout appellant’s Statement, it makes its specious

appeal to the sympathy of this Court. According to appel-

lant, if it abides by Section 14261, in order to avoid penal-

ties thereunder, it must perforce subject itself to liability

for violation of the Public Utilities Act (Pope’s Digest,

_ —

11

Sections 2121-2124) ; or, if it complies with the Public Utili-

ties Act it thereby makes itself liable for penalties under

Section 14261. The fallacy of appellant’s argument is

readily discernible. It has already received judicial con-

demnation, by the Arkansas Supreme Court, which held

categorically that there is no repugnancy between Section

14261 and the Public Utilities Act. (S. W. Bell Tel. Co. v.

Matlock, 195 Ark. 168.) Secondly, as a matter of logic,

if, as appellant insists, rule V-c has been declared unrea-

sonable, appellant is ipso facto relieved of the necessity

of enforcing it, and could not, in the nature of things, be

punished under the Public Utilities Act for failure to en-

force a void rule. Thirdly, it must be remembered that

violations of the Public Utilities Act constitute matter for

adjustment as between the State and the offending utility,

whereas violations of Section 14261 constitute matter for

adjustment as between the individual wronged by the viola-

tion (discrimination) and the utility. That a discrimina-

tion might be practiced by a telephone company which

would be unlawful under Section 14261, and the company

yet be perfectly within the bounds of the rules set by the

Public Utilities Act is a proposition so plain and simple

as to be apparent to a six-year old. Thus, appellant’s

‘‘anomalous and inequitable’’ proposition is revealed in its

true light as no more than the product of its own devious

but none the less spurious logic.

In point of fact, this ruse of appellant’s being discovered

and set at nought, its whole claim to this Court’s jurisdic-

tion falls to the ground like paw-paws after frost. For,

under appellant’s theory, Section 14261 was ‘*construed’’

by the Arkansas Supreme Court so as to produce the result

contended for by appellant above. If no such construction

was in fact made (and it could not have been so made)

then the appeal to this Court’s jurisdiction of necessity

fails.

———e

12

Appellant cites and relies upon S. W. Tel. & Tel. v. Dana-

her, 238 U. 8. 482. The company rule in that case was that

service could be refused and no discount allowed for pay.

ing bills promptly, if the subscriber was in arrears on his

telephone bill. The Supreme Court of Arkansas held this

rule unreasonable. But in the cited case, the company

was denied the right to prove or seek to prove non-compli-

ance, on the part of the plaintiff, with this rule, which was

certainly error, In the case at bar, no such element ap-

pears. Appellant was left free and unhindered to put all

the proof at its command before the jury that appellee did

not comply or offer to comply with rule V-c. The result,

as determined by the jury was that appellee had offered to

comply with this rule, and therefore no error can be predi-

cated upon this basis, as there was in the Danaher case,

supra. Furthermore, the emphasis placed by this Court

upon the then statutory penalty of $100.00 per day leads to

the permissible inference that one not inconsiderable ele-

ment of this Court's disapproval lay in the severity of the

penalty. The statute now in effect, Section 14261, provides

for a penalty of $5.00 per day.

It should be noted further that this Danaher case, after

having gone twice to the Arkansas Supreme Court, and

once to this Court (supra), found its way once more to the

Supreme Court of Arkansas. Danaher v. S. W. Tel. & Tei.

Co., 137 Ark. 324. There, pursuant to the mandate of this

Court, the Arkansas court remanded to the circuit court

for a new trial. Complaint was filed, alleging facts relied

on to establish discrimination, under the predecessor of

Section 14261, and alleging, also pursuant to the statute,

compliance with defendant’s reasonable regulations. De-

fendant’s demurrer to the complaint was sustained and

plaintiff appealed. The Arkansas Supreme Court said

(p. 331): ‘Neither this court nor the Supreme Court of

the United States has yet declared the statute unconstitu-

_ —

13

tional, upon the state of facts alleged in the complaint, the

truth of which the demurrer admits.’’ The court then re-

versed the judgment and remanded to the trial court with

directions to overrule the demurrer.

So here, in the case at bar, appellee’s complaint simply

set up facts which he claimed constituted discrimination

and alleging his offer of compliance with the reasonabie

rules of appellant company. Upon issues joined, and trial

had, the jury found for appellee on these purely factual

questions. In such a state of the record, how can it be seri-

ously urged that a Federal question was presented or that

such a question must have been decided by the Supreme

Court of Arkansas in affirming the judgment?

Appellant would next, on page 10 of its Statement, have

this Court believe that in any event, appellant was deprived

of property without due process of law, since this case is

governed by S. W. Tel. & Tel. v. Sharp & White, 118 Ark.

541, and that the Arkansas court did not follow this case.

It has always been appellee’s understanding that a court of

last resort is the most competent judge of its own decisions,

as to their relevancy and applicability to later cases. Per-

haps appellant is introducing a new theory into appellate

practice by suggesting that courts of last resort should not

be permitted to construe their own opinions and decisions,

but should in a given case yield to the persuasions of

counsel,

Again, this case does not present a question of permit-

ting appellant to mend its ways (a confession of past guilt),

as contended by it on page 11 of its Statement. The ques-

tion in this case is one of liability for penalties for an un-

lawful discrimination knowingly and systematically pur-

sued.

Appellant next asserts, on pages 11-12 of its Statement

that appellee was offered the service requested at the legal

rate therefor, but that he refused it, and that the Arkansas

mensatatition a

14

Supreme Court’s decision in effect holds that appellee need

not have complied with appellant’s reasonable regulations.

Further, that penalties were assessed against appellant

before the Arkansas Supreme Court found that other cus-

tomers of appellant were violating their contracts with ap-

pellant; and that if this be true, there was no evidence that

appellant knew of such violations. Appellee’s answer to

these erroneous propositions of appellant’s is simple and is

sustained by the record. Despite appellant’s claim as to

the kind of service offered appellee, the fact remains that

he was denied legal service of any kind at any rate, even

though he had offered to comply with appellant’s rules. As

for appellant’s interpretation of the Arkansas court’s

opinion on the question of compliance, this decision does

not and could not hold as appellant says. The whole basis

of appellee’s case is that he must have complied or offered

to comply with the appellant’s reasonable regulations.

The jury found that he had so offered to comply. This

question is therefore rendered moot.

Again, while it may be true that the evidence incidently

disclosed that other customers of appellant were violating

their contracts, this fact signifies nothing. Penalties were

assessed against appellant because it had failed and re-

fused to furnish appellee with any service at all, while

«thers like him were served. Herein lay the discrimination.

Appellant further claims that it did not know of such viola-

tions by its other subscribers, and that there was no evi-

dence, other than that each witness who was a subscriber

was shown to have been a subscriber of several years’ stand-

ing. In such a situation, with appellant rendering them

continuous service, maintaining their lines, and collecting

their rentals, appellant’s assertion in this respect is a

reductio ad absurdum of legal and logical reasoning, and

avails it nothing.

15

Summary and Conc!"sion.

To the end that this Court may be left with the clearest

understanding of appellee’s position, he concludes his

necessarily lengthy Statement against Jurisdiction, and

Motion to Dismiss, with a summary of his principal grounds

therefor: .

1. No Federal question of any kind was or is present in

this case, since it involves only questions of fact already

concluded by the jury at the trial of the case, and affirmed

by the Supreme Court of Arkansas on that basis ; therefore,

no jurisdiction exists in this Court, no matter how invoked.

2. None of the requisites of either 28 U. S. C. 344 (a)

or (b) is present in this case, therefore, no jurisdiction exists

in this Court on review.

3. Even if a Federal question were presented in this case,

the decision of the Supreme Court of Arkansas herein did

not, of necessity, require a determination of such Federal

question, and accordingly, under the general and well-

settled rule, no jurisdiction for review exists in this Court.

4. Further, since the language of the Supreme Court of

Arkansas relied upon by appellant herein as setting up the

alleged Federal question was and is only obiter dictum, and

not essential to the decision of this case by said Court, it

follows, under the accepted rule, that no jurisdiction for re-

view exists in this Court.

5. Inasmuch as there was in this case an adequate non-

Federal ground upon which the decision of the Supreme

Court of Arkansas could have been, and was based, it follows

that, under the general rule, no jurisdiction for review

exists in this Court.

6. Finally, that even though appellant be conceded its

Federal question, which appellee does not, since it affirma-

16

tively appears from the record and judgment herein that

the alleged Federal question was not raised by appellant

until after the final judgment of the Supreme Court of

Arkansas, it follows, under the general rule, that appellant

has not asserted the existence of a Federal question and

consequent jurisdiction of this Court, at the proper time, and

therefore no jurisdiction for review exists in this Court.

Wuenrerore, the foregoing premises considered, appellee

respectfully moves that the appeal herein be dismissed by

this Honorable Court.

Dated July 15, 1940.

(S.) Jouw Mayes,

Rex W. Perkins,

G. T. Sutuiws,

Cuartes D. ATKINSON,

Attorneys for Appellee.