# petition for a writ of certiorari — Broad River Power Co. v. South Carolina Ex Rel. Daniel > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0436%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** petition for a writ of certiorari - **Published:** January 1, 1930 - **Citation:** 282 U.S. 187 ## Text ‘RAILWAY; GAS AND ELECTRIC COMPANY, ; te a PD, CAMENELES Peseriowmms, 08) SY “share or ‘souTH CAHOLINA ik Bee Sons's : Dare, Acqoenty Ger See eee ee > ’ A e F r " ' t pet q 4 ’ 2 3 ; ; ; ts = "SUPREME: COURT OF ? ovr GANOLNA. eh r 7 ; Of % 6 ate a? . ‘e ’ Ne 1 " / 3 a 2: te 3:3, , ‘ 4 ‘ 4 SS m - , nm ty » . ’ a pica "0. 2OWARD PAXSON, * te Ler ease _ GEORGE M. LEPINE, writ of certiorari : Page 1 5 18 wy statement of the matter involved.............. relied on for the allowance of the writ. ......... _ Works and Imp. Co. v. Public Service Commis ; City of Charleston, 92 U. B., OTT ieee e cence ese. om Co, v. Railroad Commission, 261 U. 8., 393, a eS emma saa ae ba trek ids ae ae Railroad Commission, 264 U. 8., 513. hears’ id, ete., Co. v. Georgia, 92 U. S., O85.......... ° ale Of Palms Traction Co. v. Shealy, 226 Fed., 406. oe ete., B. Co, v. Virginia, 94 U. S., 716, 718......-- 7 ; y, etc., Co. y: Columbus, 249 U. 8., 390...... 10 & T. Co. v. Bourland, 267 U. S., 380......... 4,6, 10,12 Ina. Co. v, Home Water Supply Co., 226 ¥. 8. oeeeer er eee SPPSP RSLS SHS POSE RAH E DSHS LON ORES OD? So 262 U. &., 482... cis. ccncessee yy. Conness, 108 U. 8. Ps oi ov sais ga Bank y. Doud, 105 Fed, 128.......0:.+.-+-. t News & M. Valley Co, 13 ©. ©. A; 95; 81 GB Wed, 126... cc0+ 5 vsen cee cee ctenneee es 10 * aes Rae ee ee ‘94 U. S., 113, 126; 24 L. Bé., TT, BAL cc cee se a a a ne Ne recn: cjhakeea tet eee ‘ eau s a © Savcnds eta linay saccg ites cenaseeuseusces® | Oo; +. North Dekets, 296 TW. 8. 08--.---+- 8 cirie Service Co., 17 Pa. Corp. Rep., 246. ... 8 | Oh. Ben Avon Boneh, 58.8.2. Be Se meets > : ° Philadelphia & W. BR. Co. v. Maryland, 10 How., 374, 376... Potter-Matlock Trust Co. v. Warren County, 182 Ky., 840; 207 s. WwW, PI ah we cow's Sass 6 Kecwundaids Gab aks uncicbAcnevicna ke Prendergast v. New York Telephone Co., 262 U. S., 43........ : Texas v. Eastern Texas Railroad Co., 264:U. 8., 79. ..... 6, 7,9, i Texas, eic., R. Co. v. Marshall, 136 U. S., 308..............., The Delaware Railroad Tax, 18 Wall, 206............66.... 0% : . Tomlinson v. Branch, 15 Wall, 460... ... 2... 00. .c0cccccseces . Wolff Paeking Co. v, Court of Industrial Relations, 262 U.S, 622 SECS S EEE TER HTEHESES HEHEHE RHE HEHROH HHO EHD ESE EE OS Taste or Starures -Crrep. BROAD RIVER POWER COMPANY; COLU! RAILWAY, GAS AND ELECTRIC. COMPANY, anv F. D. CAMPBELL, Peririonsns, vs. - Dann, —— Guwmmat, PETITION FOR WRIT OF CERTIORARI Mo the Honorable the Chief Justice oa the detsainté _ Justices of the Supreme Court of the Umted: States: a petition of Broad River Power Company, Co. ambi Railway, Gas and Electric Company, and F. D.” el respectfully shows to this Honorable Court: the State i in a mandamus proceeding instituted by State court have not yet been officially reported. (Sse 4 _ for the obligations of the railway company, i any obligation to operate the street-railway ster "ye oat on amounting over thi oO “ a 3 2 of the — Court of South Carolina i in favo compel them to operate a street-railway system : d 2 had been abandoned becanse of losses sustained in the: operation thereof. (The judgment is contained in thy opinion of the Court, R. 251.) The scat af the ju rehearing was filed on July 18, 1929, ax as-dismii ~~ on September 25, 1929 (R. 272). The opinions oli he R. 203, 251.) petitioners herein to maintain and operate the sti oe ee railway system inj the City of Columbia, 8. C., nd vicinity, operation of which was sbandoned on March 11, 1927. The petitioner Columbia Railway, Gas and - Electric. Company (hereinafter called the ‘rai company) was the owner of the street-railway syste F. D. Campbell was the manager of the company, a Broad River Power Company (hereinafter called power company) was the purchaser of the.gas and - electric properties formerly belonging to the lw Bs company and. was the owner of its common stock. mae ib ad acne’ thes the prwer-comoeny aah al | l defense set up in the p > > ins to about 675,000, without any yin giation or return on the investment: (BR. a = sisined operation Renee dues the peniiaa ein of their property without due process’ of law, jn violation of the Fourteenth ee to ~~. es in part due to jitney Sodapekitions the city’ avi of jitneys in large numbers (BR. 522). Even’ “prior to this competition, however, losses had been regularly incurred (R. 1129). The referee to. whom ~ the c case was referred found that the railway. had been, “and could only in the future be, operated at, a loss, and “that under the Fourteenth Amendment to the United “tates Constitution operation could not be comipelled 3 195, 196). He recommended that the’ ‘proceedings "he dismissed (R. 196). “The Supreme Court of South - Garoling disapproved the conclusions of the referee and rendered judgment that the writ ofmandamus inane as prayed for (R. 203).. Cothran, J., dissented 4 fron oe decision of the Court (B. 251). 7 TL The Supreme Court of South Carolina based its authority, and that. if the business as a hole vas profitable, the abandonment of the street-railway serv. ice. (without the abandonment of the other services) Bourland, 297 U. S. 330, and similar cases involving attempts to abandon part of a line of railway coven by a single franchise (R. 218). _ ° (b) That the statute creating the street- -railway wll. : pany constituted a contract with the State to operate the street| railway, even though its operation could only be had at a loss (R. 221). « (c) That the ordinances of th€ City of Columbia “granting the right to operate a street railway on the streets of the city constituted a contract to operate the — same, and that the fact that operation could not be had except at a loss was no defense (R. 235, 237 ). oe (d) That-certain contracts between ‘ia street-rail- | way company. and land-devélopment corporations (B. ; 851, 885, 864, 1063), under which extensions were pe to the railway lines, required operation of. the ¢ street-railway system, to the enforcement. of loss was no defense, and created public dutjes wh could be enforced i in these proceedings (R. 239, 241 (e) That right-of-way g grants made in considera ti . Of ‘the advantage and benefit of the inter lands’? constituted contracts for operation to the foreément of which Joss was no defense, and crea oe 5 public duties which cduld be enforeed in these pro- ewedings (BR. 240, 241). if That the evidence as to past losses did not con- ‘dusively show that with proper management the sys- “gm could not be operated at a profit in the future (R. * 950), and that great weight should be attached to the finding of the railroad commission (made after the in- ftitation of these proceedings) that if properly man- ‘aged the railway could be made to yield a fair return, which conclusion was adopted by the court (BR. 243). (9) That the power company, as the purchaser of the electric and gas properties of the railway company, took the same burdened with the obligations of the railway franchises retained by the railway company, both by virtue of.the provisions of the act authorizing the sale (R. 806) and because, under the evidence show- ing that the power company owned the stock of/the ‘railway company and controlled it, the companies must be treated as one entity (R. 205). : ‘Reasons Reliod on for the Allowance of the Writ. ak The. question. involved in this case is one of na- tional importance in view of the precarious financial ‘tondition: of- street-railway systems — throughout the Un States (which isa matter of common knowledge) “and is one which vitally affects the right of those’who ‘have invested large sums in such enterprises to salvage “* portion oftheir investment. It is also a question - a, ® % a eT i be “aes he & which, wrongly decided, will seriously impede the ex. pansion of the electric industry, many electric prop. erties being now, or having been at some time in the past, connected with a street-railway system. II. The judgment of the State court requiring your petitioners to operate the railway system in question deprives them of their property without due process: of law, in violation of the Fourteenth Amendment to the United States Constitution, which was specifically set up and pleaded, and such judgment and decision is in direct conflict with the decisions of this Court in the following cases: - | Brooks-Scamlon Co. v. Railroad Commission, 251 U. 8. 393; : Bullock v. Florida Railroad Commission, %4 U. 8. 513; . Texas v. Eastern Texas Railroad Company, 264 U.S. 79; ‘oe Wolff Packing Co. v. Court of Industrial Rela- tions, 262 U. S. 522; : Ft. Smith L. é T. Co. v. Bourland, 267 U. 8. 330, ‘Apart from statute or express contract — people who have put their money into a railroad _ are not bound to go on with it at a loss if there is no reasonableyprospect of profitable opera. tion in the future. Brooks-Scanlon Co. v. Rai road Commission, 251 U. 8. 396, 64 L. ed. 323, P. U. B. 1920 C, 579, 40 Sup. Ct. Rep. 183, No. implied contract that they will do so can be. elicited from the mere fact that they have ae cepted a charter from the State, and have been SEs 7 allowed to exercise the power of eminent domain.’’ Bullock v. Florida Railroad Com- mission, 254 U. 8. 513, 520, 521. sg TIL In a case of this character this Court has de- cided that it will determine for itself whether any con- tract exists which can sustain what would otherwise amount to a confiscation, and that it is not concluded by the decision of the State court. Georgia Ry. é P. Co. v. Decatur, 262 U. S. 432; Texas & Eastern Texas R. Co., 264 U.S. 79. IV. The decision of the State court that the act under which the railway company was incorporated constituted a grant of a combined franchise for street- “yailway, electric and gas service (R. 218), based on | extracts from other statutes interpolated by the court into the Consolidation Act (R. 215) which are not in the act itself (R. 809), is in direct conflict with the decisions of this Court in Philadelphia & W. R. Co. v. Maryland, 10 How. 374; Tomlinson v. Branch, 15 Wall. 460; The Delaware Railroad Taz, 18 Wall. 206; Cen- tral Railroad, etc., Co. v. Georgia, 92 U. 8. 665; Branch », City of Charleston, 92 U. S. 677; Greene County v. Conness, 109 U. S. 104; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; Chesapeake, etc., BR. Co. v. Virginia, 94_U. 8. 718, which hold that in ‘such a case the franchises of the constituent companies continue as separate franchises in the consolidated company. In Greene County v. Conness, 109 U.S. 104, - a court said: “Tf only a sale of the Peed to another com- pany had been authorized and made, then it 8 ~ might very plausibly have been contended the purchasing company took and held it der its own charter only, without the franchises and privileges connected with it in the hands of the vendor company ; but ‘consolidation’ is not and when two companies are authorized to com solidate their roads, it is to be presumed that the franchises and privileges of each continue. to exist in respect to the several roads so con solidated.’’ V. The decision of the State court that the fact that’ the electric and gas business was being conducted by the power company at a profit precluded an abandon- ment of street-railway service by the railway com- pany on account of losses, which should be met out of the gas and electric earnings (R. 218), is in direct con- flict with the decision of this Court in Brooks-Scanlon Co. v. Railroad Commission, 251 U. S. 396; Northern Pac. R. Co. v. North Dakota, 236 U. S. 585; Norfolk & W. R., Co. v. Conley, 236 U. S. 605, as well as with the decisions of other courts in well reasoned opinions. Northern Ill. L. & T. Co. v. Illinois Commerce Com., 302 Til. 11; Mt. Carmel Public Utilities & Service Co. v. Public Utilities Com., 297 Tl. 303; : Illinois Trust & Sav. Bank v. Doud, 105 Fed. 123; a Re Northwestern Electric Service Co., 17 Pa. Corp. Rep. 246. = In Brooks-Scanlon Co. v. Railroad VOenneerne U. 8. 396, this court said: 9» ‘‘The plaintiff may be making money from its saw mill and lumber business, but it no more can be compelled to spend that than it can be compelled to spend any other money to main- tain a railroad for the benefit of others who do not care to pay for it. If the plaintiff be taken to have granted to the public an interest in the use of the railroad, it may withdraw its grant by discontinuing the use when that use can be kept up only at a loss. Munn v. Illinois, 94 U.S. 113, 126, 24 L. ed., 77, 84. The principle is * illustrated by the many cases in which the con- stitutionality of a rate is shown to depend upon whether it yields to the parties concerned a fair return.”’ : VL. The decision of the State court that the charter of the railway company constituted a contract with the State which required operation at a loss (R. 221) is in direct conflict with the decisions of this Court in Brooks-Scanlon Co. v. Railroad Commission, 251 U. S. 396; Texas v. Eastern Texas R. Co., 264 U. 8S. 79; Bullock v. Flogjda Railroad Commission, 254 U. 8S. 513. ‘‘The usual permissive charter of a railroad company doés not give rise to any obligation on the part of the company to operate its road at a loss. No contract that it will do so can be elicited from the ac@eptance of the charter or from putting the road“in operation.”’ Texas v. Eastern Texas R. Co., 264 U. 8S. 79, 85: - _ VIL. The decision of the State courts that the ordi- ances of Columbia (BR. 833 et seq.) constituted con- _ ‘acts which required operation of the street railway ata loss (R. 235, 237) is in direct conflict with the 10° decisions of this Court in Brooks-Scanlon v. Raiiro Commission, 251 U. 8. 396; Texas v. Eastern Texas Co., 264 U. S. 79; Bullock v. Florida Railroad Co mission, 254 U. 8. 513; Ft. Smith L. é T. Co. v. Bour- land, 267 U. S. 330, and is not supported by Colwmbug Railway, etc., Co. v. Columbus, 249 U. 8. 399, whi _ involved an ordinance for a fixed term, at a fixed of fare, an acceptance, and an absence of total opera- tion at a loss, none of which factors exist in this = The decision of the State court also conflicts with the decisions of other courts in well-reasoned opinions, Potter-Matlock Trust Co. v. Wonvay: Count 182 Ky. 840; Mt. Carmel Public Utilities & Service Co. o Public Utilities Com., 297 Ill. 303. Northern Ill. L. & T. Co. v. IMinois Commeutl Com., 302. Ill. 11; 2 Charleston-Isle of Palms Traction Co. v. Shey fe 266 Fed. 406. VIII. The decision of the State court that the tracts with land-development corporations (one of which had been extinguished by a deed, R. 1066) existing agreements which required continued opera- — tion, even at a loss, and created public duties wh i could be enforced in these proceedings (R. 239, 21 is contrary to the decisions of this Court in Tezas, d R. Co. v. Marshall, 136 U. S. 393; German Allian Ins. Co. v. Home Water Co., U. S. 220, and w. the decision in Jones v. Newport News € M. Val Co., 65 Fed. 736 (opinion per Taft, J.), as well: as w the previous decision of the edtrt in Ancrum Camden Water, etc., Co., 828. ( Cc. deco : ee = whee Hn? ae A : 11 d right-of-way agreements which required con- operation at a loss (R. 240, 241) is without any 7 to sustain the same. -X. The decision of the State: cannot be sus- isd on the theory that privaté chytracts were en- © - forced i in favor of private corporations and individuals, ~ jnvolving no constitutional question, for the reason that the judgment of that court gfants to the attorney _ general and all interveners the relief ‘‘as prayed for’’ (R. p. 251, fol. 287), and the rélief- prayed for by the - attorney general was that the respondents be directed “to furnish and maintain adequate and satisfactory ‘street-car service thereon in the city of Columbia and its environs permanently in accordance with the pro- visions of their charters, contracts, and provisions of _ law applicable thereto’’ (R. p. 8, fol. 11), and this is the prayer which is joined in by the interveners.. (See, @ g., B. p. 47, fol. 62.) In other words, ‘adequate and satisfactory street-car service * * * in the city ‘of Columbia’’ could not have been adjudicated under _ alleged contracts ‘having reference only to detached _ portions of the system and not providing for **ade- a and satisfactory sarvice.’” - XL The decision of the State court that ptiaeidiey "lect shouldbe given the finding of the Railroad Com - Mae which is = legislative body, that the railway COL if properly managed, be operated in the future “® profit (RB. 243), which finding was made after commencement of these proceedings, in which the Tuilroed Commission later joined ass party, is in 49: Valley Water Co. v. Ben Avon Borough; 253 U. 8. 28 Prendergast v..N. Y. Tel. Co., 262 U. S.: 43; Oklahos Operating Co. v. Love, 252 U. 8. 331;: Bluefield Wai Works and Imp. Co, v. Public Service Comm ssi 262 U. S. 679; and was without evidence to support it, as the evidence before the Railroad: Commission, whic, — is a part of the record (R. 884 et seg.), was uncom, — tradicted and was to the effect that losses had bee and must be incurred in such operation. XII. The decision of the State court that the power company could be. compelled to operate the railw : system of the railway company, even though such a operation must be carried on at a loss (R. 205), is” violative of the Fourteenth Amendment to the United States Constitution and in direct conflict with the cisions of this Court in Brooks-Scanlon Co. v. Railroad: Commission, 251 U. 8. 396; Bullock v. Florida Rai road Commission, 254. U. 8. 513; Texas v. Eastern Teaas Railroad Co., 264 U.S F195 Wolff Packing Co. ». Court of Industrial eiations: 262:U. S. 522; Ft. L. & T. Co, v. Bourland, 267 U. 8. 330; eS | i apr apes onten’ undet ag ‘of the Uni ta 8 ‘the siaion “| Waenerore your petitioners respectfully pray that om of South Carolina, "commanding that Set ; i and to send to ‘this Court for its review and te of via Carolina ex Relatione J in M. Daniel, ttorney General, Petitioner, against’ Broad River | Power Company, Columbia Railway, Gas and Electric ~ Company, and F. D. Campbell, Respondents, and that the said judgment of the Supreme Court: of South ~ Garolina may be reversed by this Honorable Court, and that your petitioners may have such other and "further relief in the premises as to this Honorable Court may seem meet and just; and your petitioners wil ever pray. eee BROAD RIVER POWER COMPANY, ag COLUMBIA RAILWAY, GAS AND 3 _ ELECTRIC_COMPANY, — F. D. CAMPBELL, | By WILLIAM MARSHALL BULLITT, | Counsel for Petitioners. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0436%3A03. Public record. Not legal advice.