Motion to Dismiss — Home Telephone & Telegraph Co. of Spokane v. Kuykendall

IN THE

SUPREME COURT

>

OCTOBER TERM, 1923

THE HoME TELEPHONE AND TELEGRAPH |

CoMPANY OF SPOKANE, a corporation,

Appellant,

v.

E. V. KUYKENDALL, as Director of Pub-

lic Works of Washington, Hance H.

CLELAND, as Supervisor of Public

Utilities of Washington, and Frank} No. 539

R. SPINNING, as Supervisor of Trans-

portation of Washington, the persons

constituting the Department of Pub-

lic Works of the State of Washington,

and JoHN H. Dunbar, Attorney Gen-

eral of the State of Washington.

Appellees. -

MOTION TO DISMISS

JoHN H. DuNBAR,

Attorney General of the State of Washington,

Raymonp W. CLIFrorp,

Assistant Attorney General of the State of Washington,

H. C. Broptr,

Counsel for Appellees.

‘Sit ainda tush

Ee a ee es ee

INDEX.

Page

Acknowledgment of Service............... 3

eee ian ea Kaos ew As «RAE 5)

SN Be ERM 5 0s 5.6 soos dace Ke ae 7

ES DO RE OES Pee ee ery 8

ee en ere ee 11

Cases cited:

American Book Co. v. Kansas, 193 U.S.

UAE RE ae enn Pare 11

Atherton Mills v. Johnston, 259 U.S. 16 11

Brownlow v. Schwartz, 67 L. Ed. 288.... 11

Heitmuller v. Stokes, 256 U.S.399..... 11

Mills v. Green, 159 U.S. 651........... 11

Shaffer v. Carter, 252 U, 8S. 87, 64 L. Ed.

| RO eee OC Pe re uray wee 11

In the Supreme Court of the

United States

OCTOBER TERM, 1923

THE HOME TELEPHONE AND TELEGRAPH |

COMPANY OF SPOKANE, a corporation, y

Appellant, |

v. | No. 539

E. V. KUYKENDALL, as Director of Pub-

lic Works of Washington, et a/.,

Appellees.

ACKNOWLEDGMENT OF SERVICE

Service of a copy of the within Notice, Motion

to Dismiss, Statement and Argument is hereby ad-

mitted by the undersigned at Seattle, Washington,

this 11th day of February, 1924.

C. M. BRACELEN,

Orro B. Rupp,

H. D. PILussury,

FraNK T. Post,

W. V. TANNER,

Counsel for Appellant.

PAL ASP NIG Ve Aka lS BRAID So I RR dh eA ee *

In the Supreme Court of the

United States

OCTOBER TERM, 1923

THE HomrE TELEPHONE AND TELEGRAPH |

COMPANY OF SPOKANE, a corporation,

Appellant,

v. + No. 539 :

E. V. KUYKENDALL, as Director of Pub- :

lic Works of Washington, et al.,

Appellees.

NOTICE

To THe Home TELEPHONE AND TELEGRAPH COMPANY

oF SPOKANE, a corporation, Appellant, and to

(. M. BraceLen, Orro B. Rupp, H. D. PrLusBury,

Frank T. Post and W. V. TANNER, counsel for

appellant:

Please take notice that on Monday, March 24,

1924, at 12 o’clock, noon, or as soon thereafter as

counsel may be heard, the appellees herein will sub-

mit to the consideration of the court their motion to

dismiss, copy of which is attached.

JOHN H. DunsBark,

Attorney General of the State of Washington,

Raymonp W. C.irrorpb,

Assistant Attorney Generai of the State of Washington,

H. C. Bropte,

Counsel for Appellees.

emp

a es - _ - ct +t

——— Ns Aah ARRAS al

In the Supreme Court of the

United States

OCTOBER TERM, 1923

THE HoMrE TELEPHONE AND TELEGRAPH )

COMPANY OF SPOKANE, a corporation,

Appellant,

Vv. + No. 539

EK. V. KUYKENDALL, as Director of Pub-

lie Works of Washington, et al.,

Appellees.)

MOTION TO DISMISS

Now come the appellees herein and move the

court to dismiss the appeal from an order denying

an interlocutory injunction herein upon the follow-

ing grounds:

I.

That this court will not review the order denying

an interlocutory injunction for the reason that the

question of relief pendente lite has become moot by

dismissal of the complaint therein.

JoHN H. DuNBarR,

Attorney General of the State of Washington,

RayMonp W. CLirrorp,

Assistant Attorney General of the State of Washington,

H. C. Bropie,

Counsel for Appellees.

at

On

STATEMENT.

For the purpose of the motion hereinbefore set

out, the facts involved may be stated as follows:

The Home Telephone and Telegraph Company of

Spokane, on the 24th day of April, 1925, filed in the

district court of the United States, for the western dis-

trict of Washington, southern division, its bill of com-

plaint against the appellees herein. In said complaint,

in addition to other matters, the appellants prayed for

a temporary injunction to restrain the appellees

herein from enforcing a certain rate order of the de-

partment of public works of the state of Washing-

ton. On April 30, 1923, the application of the ap-

pellant for an interlocutory injunction came on to

be heard before the statutory court of three judges

provided for in section 266 of the Judicial Code, and

said application was denied, and from said order this

appeal was prosecuted to this court,

Thereafter such proceedings were had in said

case in the district court as resulted in the entry of

an order dismissing the bill of complaint therein by

the said court on the 5th day of January, 1924. From

said order of dismissal, an appeal has been taken to

this court and is now pending herein as cause No.

aiadiedait The transcript of record in said appeal from

said final order has not yet been printed, but for the

information of the court in passing on this motion,

said order of dismissal is set forth in full as follows:

' (ih Soh a Reb AREER Sa AALAND

a

4

9

In the District Court of the United

States, for the Western District

of Washington :

SOUTHERN DIVISION

IN EQUITY, No. 167-E

THe Home 'TRLEPHONE AND TELEGRAPH }

Plaintiff, |

¥. |

KE. V. KUYKENDALL, as Director of Pub- |

lie Works of Washington, Hance H. |

CLELAND, as Supervisor of Public |

Utilities of Washington, and Frank } DECREE

R. SPINNING, as Supervisor of Trans-

portation of Washington, the persons

constituting the Department of Pub- |

lie Works of the State of Washington, |

and Joux H. Dexpar, Attorney Gen- |

eral of the State of Washington.

Defendants. 3

This cause having come on regularly for hearing

TS

in this court on the 31st day of December, 1923, upon

the defendants” motion to dismiss the bill of com-

plaint filed herein, plaintiff being represented by

Messrs. Otto B. Rupp and W. V. Tanner, its solici-

tors, and the defendants being represented by John

H. Dunbar, Attorney General of the State of Wash-

ington, and Raymond W. Clifford, his assistant, and

Messrs. H. C. Brodie, Thomas J. L. Kennedy,

KE. K. Murray, J. M. Geraghty and Alex M.

10

Winston, their solicitors, and after hearing § the

arguments of counsel for the respective parties, the

court having announced its oral opinion and decision

that the motion to dismiss should be sustained upon

the grounds that the bill of complaint herein does not

state any matters of equity entitling the complainant

to the relief prayed for; that said bill of complaint

does not state facts sufficient to entitle complainant

to any relief against the defendants; and that said

bill has been prematurely brought, by reason of the

failure to exhaust the right of plaintiff to relief in

the superior and supreme courts of the state of Wash-

ington;

Now, on this 5th day of January, 1924, the

parties herein now appearing by their respective

counsel, on motion of the defendants, pursuant to

such decision of the court, it is by the court hereby

Orperep, Apsupcep and Decrrep that said motion

to dismiss be and it is hereby granted, and that said

bill of complaint and this cause of action be and the

same hereby are dismissed, and that the defendants

have and recover their costs and disbursements

herein.

To the foregoing, and each and every part

thereof, the plaintiff excepts, and its exception is al-

lowed.

Done in open court this 5th day of January,

1924.

Epwarp E. Cusi MAN,

Judge.

11

ARGUMENT.

1.

The application for an interlocutory injunction

was an application for relief pendente lite, and upon

the dismissal of the litigation by the foregoing final

order, no relief pendente lite could be afforded and

the question of such relief becomes a moot question,

and under innumerable decisions of this court, a

moot question will not be passed upon.

Brownlow v. Schwartz, 67 L. ed. 288,

Atherton Mills v. Johnston, 259 U.S. 16,

Heitmuller v. Stokes, 256 U.S. 359,

American Book Company v. Kansas, 193

U.S. 49,

Mills v. Green, 159 U.S. 651,

and numerous other cases cited in the above cases.

If.

When an appeal has been taken from an order

denying an interlocutory injunction, and thereafter

an order is entered dismissing the complaint and an

appeal is prosecuted from such final order of dis-

missal, the interlocutory appeal should be dismissed

and the case considered on the appeal from the final

order of dismissal.

Shaffer v. Carter, 252 U.S. 37, 64 L. ed, 445.

LEG BEGIN NRT DELLE LESTE LOIRE LONI AEN Fo a LO ORES SNE

babel tinted

12

It is therefore respectfully submitted that the

motion to dismiss the appeal from the order denying

an interlocutory injunction should be g ‘anted.

Joun H. DUNBAR,

Attorney General of the State of Washington,

Raymonp W. CLIFFORD,

Assistant Attorney General of the State of Washington,

H. C. Bropir,

Counsel for Appellees.

RARE eS PARAL DAM Bd Se RT ae Sea een hee Kits

In the Supreme Court of the United States,

OCTOBER TERM, 1923.

THE HOME TELEPHONE AND TELEGRAPH COM-

PANY OF SPOKANE, a corporation, Appellant,

v.

E.V. KUYKENDALL, as Director of Public Works of Wash-

ington, HANCE H. CLELAND, as Supervisor of Public

Utilities of Washington, and FRANK R. SPINNING, as

Supervisor of Transportation of Washington, the persons

constituting the Department of Public Works of the State

of Washington, and JOHN H. DUNBAR, Attorney General

of the State of Washington, Appellees.

APPEAL FROM AN ORDER DENYING AN

INTERLOCUTORY INJUNCTION.

Brief of Appellant in Opposition to Motion

to Dismiss Appeal.

Otto B. Rupp,

C. M. BRACELEN, FRANK T. Post,

W. V. TANNER, H. D. Prctssury,

Of Counsel. Solicitors for Appellant.

Law Brief Printing Co., Seattle

Sk seR ee ERA SOM Ik RBs ec Like SADA TC Ra

Re peiain ah a ede aA veer Sc ep 2 eS wee RS

Hh Ke ATL Ra NE iis PIONS Le A TOOL AE CLEAR EEO

No. 339.

In the Supreme Court of the United States,

OCTOBER TERM, 1923,

THE HOME TELEPHONE AND TELEGRAPH COM-

PANY OF SPOKANE, a corporation, Appellant,

Vv.

E. V. KUYKENDALL, as Director of Public Works of Wash-

ington, HANCE H. CLELAND, as Supervisor of Public

Utilities of Washington, and FRANK R. SPINNING, as

Supervisor of Transportation of Washington, the persons

constituting the Department of Public Works of the State

of Washington, and JOHN H. DUNBAR, Attorney General

of the State of Washington, Appellees.

APPEAL FROM AN ORDER DENYING AN

INTERLOCUTORY INJUNCTION.

Brief of Appellant in Opposition to Motion

to Dismiss Appeal.

- Statement.

This case is a companion of a suit pending in

this court entitled The Pacific Telephone and Tele-

graph Company, a corporation, Appellant, v. Kuy-

kendall, et al, Appellees, same being cause No. 540.

ee ae

2

This is an appeal from an order entered April

30, 1923, by a statutory court convened pursuant

to section 266 of the Judicial Code denying an ap-

plication of The Home Telephone and Telegraph

Company of Spokane, appellant here, for an inter-

locutory injunction to restrain the appeilees from

enforcing a confiscatory rate order of the Depart-

ment of Public Works of the State of Washington.

This denial was not on the merits but upon the sole

ground that appellant had not as yet exhausted its

purported legislative remedies in the state courts

of Washington.

After the denial of the interlocutory injunction,

the District Judge refused to proceed in the main

ease, Thereupon, The Pacific Telephone and Tele-

graph Company, which had a like case pending in

the same court, made an application to the Circuit

Court of Appeals for the Ninth Circuit for a writ

of mandamus commanding the District Judge to

proceed in the case brought by The Pacific Tele-

phone and Telegraph Company. The writ was

granted. (Pacific Tel. & Tel. Co. v. Cushman, Dis-

trict Judge, 292 Fed. 930.) Thereafter, the Dis-

trict Judge did proceed in this case, and on Janu-

ary 5, 1924, entered a decree dismissing the com-

plaint in this case. From this decree of dismissal,

3

an appeal was likewise taken to this court and is

now pending herein as cause No. 789. On motion

an order was made on February 25, 1924, advanc-

ing this cause No. 539 and the related cause No.

799 on the ealendar, and setting them down for

argument together on April 14, 1924.

Meanwhile the appellees on February 11, 1924,

moved to dismiss the appeal in this cause, arguing

that the question therein involved had become moot.

This motion was noted for argument for March

24, 1924.

In view of this court’s order advancing this

cause and cause No. 789 for argument on the

merits on April 14, 1924, it would seem desirable

that the whole argument in these two related cases

be had on the same day rather than piecemeal, and

that therefore the motion to dismiss the appeal

should be passed for consideration until April 14th.

The argument in this case is identical with the

argument made on behalf of The Pacific Telephone

and Telegraph Company in case No. 540. For con-

venience sake only, we reprint that argument here.

Argument.

In order to determine whether appellees’ motion

to dismiss the appeal on the ground that the ques-

tion has become moot, is well taken, the precise

nature of the question involved in this appeal and

the status of the litigation must be considered.

The only question before the court on this appeal

from the order denying an injunction pendente lite

is whether appellant had the right to sue in the

United States court at the time it filed its complaint,

or whether as a condition precedent appellant was

first required to exhaust its alleged legislative

remedies in the state courts of Washington.

As already stated the statutory court did not

pass on the merits. Hence, on this appeal, this

court will determine the jurisdictional question

only, and if it holds that the statutory court was

wrong in refusing to pass on the merits of the

application, will remand the cause to the statutory

court for that purpose.

An analogous situation was presented in Okla-

homa Natural Gas Co. v. Russell, 261 U.S. 299, 293,

where, after determining that the statutory court

~

3)

erred in refusing to pass on the merits of the ap-

plication for an interlocutory injunction, this court

said:

“As in our opinion the District Court had juris-

diction and a duty to try the question whether pre-

liminary injunctions should issue, and as that ques-

tion has not yet been considered, the cases should

be remanded to that Court, with directions to

proceed to the trial. Generally it is not desirable

that we should pass upon such matters until they

have been dealt with below.”

As, therefore, this court will not in general pass

on the merits of the application for relief pendente

lite before that question has been considered below,

there is in this appeal no question of injunctive

relief but merely a jurisdictional question.

Clearly, the argument of the appellees, that the

question is moot because no relief pendente lite may

be granted, is unsound because no relief pendente

lite would be granted by this court in any event.

Hence it cannot be said that the case is moot on the

usual ground that a decree would be wholly inef-

fectual and inoperative. If moot at all, it must

be on some other ground. But this cause can only

be moot if the adjudication of the jurisdictional

question has become wholly immaterial. Has it?

The answer is that question depends upon whether

6

the litigation has ceased or is still pending. If the

litigation is still pending, then the question of juris-

diction in this case, as in every other case, is stili

a vital one; in fact, it is the sine qua non of the suit.

Although after the present appeal from the order

of the statutory court denying relief pendente lite,

the trial judge during subsequent proceedings in the

main cause below dismissed the complaint, yet an

appeal from the decree was immediately taken.

That a cause on appeal is still a pending cause

hardly requires citation of authority.

Ex parte Craig, 274 Fed. 177, 187;

Gore v. Stacpoole, 1 Dow. (H. L.) 18, 31;

Holland v. Fox, 3 El. & Bl. 977, 985;

Howell v. Bowers, 2 Cr. M. & R. 621,

Brasch v. Brasch, 50 Neb. 73;

Boone v. Boone, 160 Iowa 284;

Hupp v. Hocking Oil & Natural Gas Co., 88

Ohio St. 61;

Ex parte James Mumford, 57 Mo. 603, 606;

In re Egan, 24 S. D. 301;

State Board of Examiners v. Hart, 104 Minn.

88;

Pemberton v. Pemberton, 169 Ky. 476.

As the cause is still pending, the jurisdictional

question must be determined. The motion to dis-

7

miss this appeal, therefore, raises only a question

of practice: whether the jurisdictional question

will be determined on this appeal from the order of

the statutory court, or on the appeal from the

decree of dismissal of the District Judge. The ques-

tion not being moot and section 266 of the Judicial

Code having provided for a separate appeal from

an order denying the interlocutory injunction, it

would seem that the question should be determined

in the appeal where it is first raised.

Counsel rely upon Shaffer v. Carter, 252 U. S.

37, but they misconstrue the effect of that decision.

In that case there were two appeals from a single

decree rendered in a suit in equity heard before a

statutory court. The statutory court not only

denied the application for the interlocutory injunc-

tion, but also dismissed the complaint by the same

decree. Assuming that the statutory court which,

under section 266, is expressly given only the power

to grant or deny an interlocutory injunction, also

has the power to dismiss the complaint for want of

equity, still in that case there was only one decree,

a final decree, in which was merged the order deny-

ing the interlocutory injunction. Obviously an

appeal could not be taken from that final decree on

the theory that it was interlocutory but only on the

theory that the decree was final. That case is,

a 3 a |

8

therefore, merely authority for the proposition that

where a statutory court (convened pursuant to sec-

tion 266) in addition to denying the application for

an interlocutory injunction dismisses the complaint

in the same decree, an appeal should be taken from

the final decree of dismissal under section 238 of

the Judicial Code.

Here the situation is entirely different. In this

case an appeal is taken, pursuant to section 266,

from an order of the statutory court, denying re-

lief pendente lite, and eight months later the Dis-

trict Judge, in whose court the main case was pend-

ing, entered a decree of dismissal from which an

appeal is taken. Here it ean hardly be said that

an order of the statutory court is merged in the

final decree of the District Judge. There can be no

merger under such circumstances. If, therefor?,

the question involved in the appeal from the inter-

locutory injunction is not moot and if the order of

the statutory court is not merged in the decree of

dismissal of the District Judge, then the appeal in

this cause cannot be dismissed but it must be de-

termined in due course.

In the case of Male v. The Atchison, Topeka &

Santa Fe Railroad Company, 240 U. S. 97, a motion

Bi

ae

9

was made to dismiss an appeal for want of juris- t

diction. The reason assigned for the motion was

that the question involved on the appeal had become

moot in that after the rendition of the order of

the lower court declining to take jurisdiction, the f

appellant had sued upon the same alleged cause of

action in the Supreme Court of the State of New

York, where a final judgment on the merits was

entered dismissing the complaint. This court re- :

fused to dismiss the appeal, assigning as its reason |

for its refusal that it was concerned with the juris- E

dictional question only, and that the motion to dis- .

miss was based on matter going to the merits. This

court, therefore, proceeded to determine the ques-

tion as to whether the lower court as a United :

States court had power to entertain the cause.

So in the present case the question before this :

court is whether the statutory court as a United i

States court should have entertained the cause and

passed upon the question of relief pendente Lite.

This question still remains regardless of the decree

of dismissal of the District Judge, from which an

appeal has also been taken.

It may possibly be that if, after the decree of

dismissal was entered in this cause by the District

Judge, no appeal had been taken therefrom, and the

10

time for appeal had expired, this court might not

adjudicate the question whether the statutory court

should have assumed jurisdiction, but such is not

the case.

The case of the City of Wallace v. Deane (Idaho)

69 Pac. 62 is in point. In that case an appeal was

taken from an order of the District Court dissolving

a temporary injunction. Subsequently in the main

cause below a final judgment was entered in favor

of the defendant, from which final judgment no

appeal was taken and the time for appeal had ev-

pired. Upon this ground the motion to dismiss the

appeal was sustained since the controversy had com-

pletely ceased. Applying that reasoning to the pres-

ent case, it follows that where an appeal has been

taken from a final judgment dismissing the com-

plaint, the controversy has not ceased and an ap-

peal from an order denying a temporary injune-

tion still presents a justiciable question.

Should this court, however, be of the opinion that

the jurisdictional question should not be separately

considered upon the present appeal, it will and must

consider that question upon appeal from the final

decree of the District Judge dismissing the com-

plaint. This is true because this court must in

any event determine the jurisdictional question, and

11

secondly because if the appeal from the denial of

the interlocutory injunction will not be separately

considered, still upon appeal from the final decree

every interlocutory order affecting the rights of

the parties regarding the matters in question be-

tween them, is subject to review in the appellate

court and will be decided at the same time.

Central Trust Company v. Seasongood, 130

U. S. 482;

Perkins v. Fourniquet, 6 How. 206, 209;

Forgay v. Conrad, 6 How. 201;

Texas Company v. Central Fuel Oil Co., 194

Fed. 1, 22;

Western Union Telegraph Co. v. The U. S.

and Mexican Trust Company, 221 Fed.

545, 551.

While the rule of these cases ordinarily applies

only where no separate appeal is provided by stat-

ute from an interlocutory order, still if in the

opinion of this court the condition of this cause is

now such that the appeal from the interlocutory

order should no longer be separately considered,

then the rule applies with full force and this court

will, upon appeal from the final decree, consider the

Peo A RVETA

12

question of whether the interlocutory order was

properly made.

Respectfully submitted,

OTTO B. RUPP,

FRANK T. POST,

H. D. PILLSBURY,

Solicitors for Appellant.

W. V. TANNER,

C. M. BRACELEN,

Of Counsel.