Fed. Radio Comm'n v. Gen. Elec. Co., 281 U.S. 464 (1930)
Case details
Citation
281 U.S. 464
Full caption
FEDERAL RADIO COMMISSION v. GENERAL ELECTRIC COMPANY et al .
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
May 19, 1930
FEDERAL RADIO COMMISSION v. GENERAL ELECTRIC COMPANY et al .
CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
No. 122. Argued January 17, 20, 1930.—Decided May 19, 1930.
1
This Court is a constitutional, as distinguished from a legislative, Court, and can have no jurisdiction other than of cases and controversies falling within the classes enumerated in the judiciary article of the Constitution; it cannot give decisions which are merely advisory, nor can it exercise or participate in the exercise of functions which are essentially legislative or administrative. P. 469.
2
A proceeding in the Court of Appeals of the District of Columbia under the Radio Act of 1927, to review an order of the Radio Commission refusing an application for the renewal of an existing license for full time operation of a broadcasting station, is not a case or controversy within the meaning of the judiciary article of the Constitution, but is an administrative proceeding, and the decision therein is not reviewable by this Court. Pp. 466, 470.
3
The action of the Court of Appeals in assessing costs against the Commission did not alter the nature of the proceeding. P. 470. Certiorari to 31 F. (2d) 630, dismissed.
Certiorari , 280 U. S. 537, to review a decision of the Court of Appeals of the District of Columbia, which reversed an order of the Radio Commission refusing an application to renew an existing license for full time operation of a broadcasting station.
Mr. Bethuel M. Webster, Jr., Special Counsel, Federal Radio Commission, pro hac vice, by special leave of Court, with whom Messrs. Paul M. Segal and Louis G. Caldwell were on the brief, for petitioner.
Messrs. Charles Neave, Stephen H. Philbin, and John W. Guider were on the brief for the General Electric Company.
Messrs. Hamilton Ward, Attorney General of New York, Henry S. Manley, Assistant Attorney General, and Claude T. Dawes, Solicitor General, were on the brief for the State of New York.
Mr . Justi ce Van Devanter delivered the opinion of the Court.
A review is sought here of a decision of the Court of Appeals of the District of Columbia given on an appeal from an order of the Radio Commission.
The General Electric Company owned and was operating a broadcasting station at Schenectady, New York, when the Radio Act of 1927 went into effect. Thereafter it sought and obtained from the commission successive licenses under that act for the further operation of the station. The last license was issued November 1, 1927, for that calendar month and was prolonged until November 11/1928, by successive short extensions.
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Opinion of the Court. 281 U. 8.
January 14, 1928, the company made application for a renewal of that license. The application was not acted upon until October 12, 1928, and then the commission ordered that a license be not issued with terms like those of the existing license, but that one be issued with other terms much less advantageous to the company and the communities which it was serving—the chief change being a pronounced reduction in the admissible hours of service. The company regarded this order as a refusal of its application for a renewal of the existing license and prosecuted an appeal, under section 16 of the act of 1927, to the Court of Appeals of the District of Columbia. After a hearing that court found from the record returned by the commission that public convenience, interest and necessity would be served by renewing the existing license without change in its terms, and on that basis held that such a renewal should be granted and that the proceeding should be remanded to the commission with a direction to carry the court’s decision into effect. Costs were assessed against the commission. 31 F. (2d) 630. On the petition of the commission certiorari was then granted by this Court.
Our jurisdiction to review the decision of the Court of Appeals is challenged.
The act of 1927, c. 169, 44 Stat., pt. 2,’1162, was enacted as a regulation, of interstate and foreign radio communication; and it is in such activities that the company’s broadcasting station is used. The act, as amended in 1928, c. 263, 45 Stat. 373, and 1929, c. 701, 45 Stat. 1559, directs that no broadcasting station be used in such communication except in accordance with the act and under a license granted for the purpose; authorizes the Radio Commission to grant station licenses and renewals thereof, both for periods not exceeding three months, and otherwise gives it wide powers in administering the act; restricts the granting of station licenses and renewals to instances “ where public convenience, interest or necessity p. 467will be served thereby ”; authorizes the commission to determine the question of public convenience, interest or necessity; declares that decisions of the commission in all matters over which it has jurisdiction “ shall be final, subject to the right of appeal” therein given; provides (§ 16) that any applicant for a station license or the renewal of such a license, whose application is refused by the commission, may appeal from such decision to the Court of Appeals of the District of Columbia; directs that the grounds of the appeal be stated and the revision be confined to them; requires the commission, where an appeal is taken, to transmit to the court the originals or certified copies of all papers and evidence presented upon the application refused, together with a copy of the commission’s decision and a statement of the facts and grounds of the decision; authorizes the court to take additional evidence upon such terms and conditions as it may deem proper; and provides that the court “ shall hear, review and determine the appeal upon said record and evidence, and may alter or revise the decision appealed from and enter such judgment as to it may seem just.”
We think it plain from this resume of the pertinent parts of the act that the powers confided to the commission respecting the granting and renewal of station licenses are purely administrative and that the provision for appeals to the Court of Appeals does no more than make that court a superior and revising agency in the same field. The court’s province under that provision is essentially the same as its province under the legislation which up to a recent date permitted appeals to it from administrative decisions of the Commissioner of Patents.1 Indeed, the provision in the act of 1927 is patterned largely p. 468after that legislation. And while a few differences are found, there is none that is material here.
1
Sections 59-62, Title U. S. C. The jurisdiction vested in the Court of Appeals of the District of Columbia by this legislation was transferred to the Court of Customs and Patent Appeals by the Act of March 2, 1929, c. 488, 45 Stat. 1475.
Referring to the provisions for patent appeals this Court said in Butterworth v. Hoe, 112 U. S. 50, 60, that the function of the court thereunder was not that of exercising ordinary jurisdiction at law or in equity, but of taking a step in the statutory proceeding under the patent laws in aid of the Patent Office. And in Postum Cereal Company v. California Fig Nut Company, 272 U. S. 693, 698, which related to a provision for a like appeal in a trade-mark proceeding, this Court held: “ The decision of the Court of Appeals under § 9 of the act of 19052 is not a judicial judgment. It is a mere administrative decision. It is merely an instruction to the Commissioner of Patents by a court which is made part of the machinery of the Patent Office for administrative purposes.” Another case in point is Keller v. Potomac Electric Power Co., 261 U. S. 428, 442-444, which involved a statutory proceeding in the courts of the District of Columbia to revise an order of a commission fixing the valuation of the property of a public utility for future rate-making purposes. There this Court held that the function assigned to the courts of the District in the statutory proceeding was not judicial in the sense of the Constitution, but was legislative and advisory, because it was that of instructing and aiding the commission in the exertion of power which was essentially legislative.
In the cases just cited, as also in others, it is recognized that the courts of the District of Columbia are not created under the judiciary article of the Constitution but are legislative courts, and therefore that Congress may invest them with jurisdiction of appeals and proceedings such as have been just described.
2
Now § 89, Title 15, U. S. C. This jurisdiction also was transferred to the Court of Customs and Patent Appeals by the act cited in note 1.
But this Court cannot be invested with jurisdiction of that character, whether for purposes of review or otherwise. It was brought into being by the judiciary article of the Constitution, is invested with judicial power only and can have no jurisdiction other than of cases and controversies falling within the classes enumerated in that article. It cannot give decisions which are merely advisory; nor can it exercise or participate in the exercise of functions which are essentially legislative or administrative. Keller v. Potomac Electric Power Co., supra, p. 444, and cases cited; Postum Cereal Co. v. California Fig Nut Company, supra, pp. 700-701; Liberty Warehouse Co. v. Grannis, 273 U. S. 70, 74; Willing v. Chicago Auditorium Association, 277 IL S. 274, 289; Ex parte Bakelite Corporation, 279 U. S. 438, 449.
The proceeding on the appeal from the commission’s action is quite unlike the proceeding, under sections 1001 (a)-1004 (b) of the Revenue Act of 1926, c. 27, 44 Stat., pt. 2, 109, on a petition for the review of a decision of the Board of Tax Appeals; for, as this Court heretofore has pointed out, such a petition (a) brings before the reviewing court the United States or its representative on the one hand and the interested taxpayer on the other, (b) presents for consideration either the right of the United States to the payment of a tax claimed to be due from the taxpayer or his right to have refunded to him money which he has paid to satisfy a tax claimed to have been erroneously charged against him, and (c) calls for a judicial and binding determination of the matter so presented—all of which makes the proceeding a case or controversy within the scope of the judicial power as defined in the judiciary article- Old Colony Trust Co. v. Commissioner of Internal Revenue, 279 U. S. 716, 724-727.
And what is said in some of the cases already cited respecting the nature and purpose of suits to enforce or
Syllabus. 281U. S.
set aside orders of the Interstate Commerce Commission, as also orders of the Federal Trade Commission, makes it apparent that the jurisdiction exercised in those suits is not administrative, but strictly judicial, and therefore quite unlike the jurisdiction exercised on appeals from the Radio Commission.
Of course the action of the Court of Appeals in assessing the costs against the commission did not alter the nature of the proceeding.
Our conclusion is that the proceeding in that court was not a case or controversy in the sense of the judiciary article, but was an administrative proceeding, and therefore that the decision therein is not reviewable by this Court.
Writ oj certiorari dismissed.
Mr . Chief Justice Hughes did not participate in the consideration or decision of this case.
GRUBB v. PUBLIC UTILITIES COMMISSION OF
OHIO ET AL.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.
No. 491. Motion to Dismiss or Affirm submitted January 27, 1930.—Decided May 19, 1930.
1
A judgment of the Supreme Court of Ohio, affirmed, upon review under Gen. Code, §§ 544, 545, an order of the State Public Utilities Commission, which, in granting to the appellant a license to operate a line of passenger motor buses within the State, forbade his adding to the route a loop to a point in an adjacent State near the state line and back. Held conclusive as res judicata in a suit in the federal court, upon the questions whether the prohibition in the order violated rights of the appellant under the commerce clause of the Federal Constitution and under the privileges and immunities clause of the Fourteenth Amendment. P. 475, 1 “ Ordered that the said applicant be, and hereby he is, prohibited from incorporating within the regular route, upon which he will herein be granted a certificate to operate within the State of Ohio, any movement which shall provide for the crossing and recrossing of the Ohio River at Portsmouth, Ohio.”
470 Counsel for Parties.
2. The state and federal courts have concurrent jurisdiction over civil suits arising under the Constitution and laws of the United States, including the commerce clause, save in exceptional instances where the jurisdiction has been restricted by Congress to the federal courts. P. 475.
3. Where control over specific property is not involved, the fact that suit is begun first in a federal court does not preclude a state court from entertaining a suit involving the same subject and parties. The final judgment first rendered in either case becomes conclusive . in the other as res judicata. P. 476.
4. In determining the effect of a judgment of a state court as an estoppel in the federal court, the state court’s decision as to the jurisdiction intended to be conferred on it by state statutes is conclusive in the District Court and in this Court on appeal. P. 477. 5. A judgment of a state court affirming an order of a state commission over an objection distinctly raised under the Constitution is necessarily an adjudication of the federal question, although that question be not mentioned by the court in its opinion. Id.
6. Upon a judicial review attacking the validity of an order of an administrative body, the party attacking must present every available ground of which he has knowledge. He is not at liberty to prosecute his right by piecemeal. P. 478.
7. A judgment upon the merits in one suit is res judicata in another where the parties and subject matter are the same, not only as respects matters actually presented to sustain or defeat the right asserted, but also as respects any other available matter which might have been presented to that end. P. 479.
33 F. (2d) 323, affirmed.
Appeal from a decree of the District Court of three judges dismissing the bill in a suit to enjoin, in part, an order of the Public Utilities Commission of Ohio defining the appellant’s right to operate a line of passenger buses.
Messrs. John F. Carlisle, Frank M. Raymund, and Andrew Wilson were on the brief for appellant.
Messrs. Gilbert Bettman, Attorney General of Ohio, T. J. Herbert, Assistant Attorney General, A. R. Johnson, and D. H. Armstrong were on the brief for appellees.
Mr . Justi ce Van Devant er delivered the opinion of the Court.
The appellant applied to the Public Utilities Commission of Ohio for a certificate to operate, solely in interstate commerce, a line of passenger motor buses over certain public highways in that State as part of an intended route between Columbus, Ohio, and Huntington, West Virginia. In his application he described the route as including a short loop at Portsmouth, Ohio, whereby the buses on reaching that point would cross the Ohio River to a village at the Kentucky end of the interstate bridge and then recross to Portsmouth before proceeding towards their destination. Several carriers likely to be affected if the application was granted intervened and filed protests. A hearing was had, after which the Commission made an order granting the requested certificate, but excluding the loop at Portsmouth from the intended route—the exclusion being put in the form of an express prohibition,1 and the commission explaining that in its opinion the loop was intended to be merely a device to enable the appellant to carry passengers between Portsmouth and other points in Ohio and, by giving that service the appearance of an interstate service, to avoid compliance with the laws of that State relating to intrastate motor transportation. A rehearing was sought by the appellant because the loop at Portsmouth was excluded, and by the protestants because the certificate was granted; but the Commission adhered to its order.
The appellant then brought a suit in equity against the Commission in the District Court of the United States for p. 473the Southern District of Ohio to restrain and prevent the enforcement of so much of the order as excluded from the intended route the loop at Portsmouth. The protestants and some police officers who might be called on to assist in enforcing the order were made codefendants with the Commission. The parties were all citizens of Ohio, and the sole ground advanced for invoking the jurisdiction of the federal court was that the suit was one arising under the Constitution of the United States and involving more than three thousand dollars. See sections 41 (1) and 380, Title 28, U. S. C.
In the bill so much of the order as excluded the loop at Portsmouth was assailed as an attempted restriction and regulation of interstate commerce by a state agency contrary to the commerce clause of the Constitution of the United States and to section 614-101 of the General Code of Ohio, and as denying to the appellant rights, privileges and immunities guaranteed by the Fourteenth Amendment. The prayer was for both an interlocutory and a permanent injunction, to be granted conformably to section 380, Title 28, U. S. C.
Three judges were called pursuant to that section to act in the suit; an interlocutory injunction was granted; and upon the final hearing there was a decree dissolving the injunction and dismissing the bill upon the ground that in a litigation between the same parties, had in the Supreme Court of Ohio while the suit in the District Court was pending, the Commission’s order had been adjudged valid, and that the appellant was barred and estopped by that adjudication from further litigating the same matter. 33 F. (2d) 323. After the decree was entered, the appellant sought and the District Court allowed a direct appeal to this Court under sections 345 and 380, Title 28, U. S. C.
The appellees now have interposed a motion, under section 4 of rule 7 of the Rules of this Court, that the p. 474decree be affirmed without awaiting oral argument upon the ground that the objections taken to the decree are so unsubstantial as not to admit of debate; and the parties have submitted full briefs in this connection.
The laws of Ohio make provision for a review of final orders of the Commission by the Supreme Court of the State—a judicial review culminating in a judgment. Gen. Code, §§ 544, 545; Hocking Valley Ry- Co. v. Public Utilities Commission, 92 0. St. 9, 14; Hocking Valley Ry. Co. v. Public Utilities Commission, 100 0. St. 321, 323; Ohio Utilities Co. v. Public Utilities Commission, 267 U. S. 359.
Shortly after the Commission denied their respective applications for a rehearing the appellant and the protestants by two distinct petitions sought and obtained a review of the Commission’s order by the Supreme Court of the State—the appellant complaining of the exclusion of the loop at Portsmouth, and the protestants of the granting of the certificate. The Commission was made a party defendant to both petitions, and the petitions were consolidated and heard together. Thus the court had before it the entire order, the Commission, the appellant and the protestants. In that court the appellant charged in his petition that so much of the order as excluded the loop from the intended route was unlawful and should be reversed upon the grounds, among others, that it was not sustained by the evidence, denied to the appellant rights, privileges and immunities guaranteed by the Fourteenth Amendment, was in conflict with the commerce clause of the Constitution of the United States, and was in violation of section 614^101 of the General Code of Ohio. The grounds on which the protestants challenged the order are only obscurely indicated in the present record—possibly because having no bearing here.
After a hearing in which all of the parties participated the state court rendered a judgment sustaining and affirming the Commission’s order in its entirety. 119 0. S. 264. No effort was made to have that judgment reviewed by this Court, and after the three months allotted for applying for such a review had elapsed, the defendants in the suit in the District Court, by leave of that court, .interposed answers setting up the judgment as a bar to the further prosecution of the suit. A hearing upon this plea resulted in the decree now under review, which sustained the plea and dismissed the bill.
The case in the state court was so far identical with the suit in the federal court as respects subject matter and parties that there can be no doubt that the judgment in the former, unless invalidated by some jurisdictional infirmity, operated to bar the further prosecution of the latter. That the state court had jurisdiction of the par-, ties is plain and not questioned. But the appellant does question that it had jurisdiction of the subject matter—and this although at the outset he treated that jurisdiction as subsisting and invoked its exercise. Of course, he is entitled to raise this question notwithstanding his prior inconsistent attitude, for jurisdiction of the subject matter must arise by law and not by mere consent. We turn therefore to the grounds on which that jurisdiction is questioned.
The appellant relies on the commerce clause of the Constitution as in some way operating to commit to the federal courts and to withhold from the state courts jurisdiction of all suits relating to the regulation or attempted regulation of interstate commerce. This view of that clause is quite inadmissible. It has no support in any quarter, is at variance with the actual practice in this class of litigation, Gibbons v. Ogden, 9 Wheat. 1; Western p. 476Union Telegraph Co. v. Public Service Commission, 247 U. S. 105; Pennsylvania Gas Co. v. Public Service Commission, 225 N. Y. 397; s. c. 252 U. S. 23; Peoples Gas Co. v. Public Service Commission, 270 U. S. 550; Public Utilities Commission v. Attleboro Co., 273 U. S. 83; Murray v. Chicago & Northwestern Ry. Co., 62 Fed. 24, 42-43; and is in conflict with the doctrine often sustained by this Court that the state and federal courts have concurrent jurisdiction of suits of a civil nature arising under the Constitution and laws of the United States, save in exceptional instances where the jurisdiction has been restricted by Congress to the federal courts. Claflin v. Houseman, 93 U. S. 130, 136-137; Robb n . Connolly, 111 U. S. 624, 635-637; Second Employers’ Liability Cases, 223 U. S. 1, 56—57; Minneapolis & St. Louis R. R. Co. v. Bombolis, 241 U. S. 211, 221-223. There is no such restriction which is applicable here.
It next is said that the suit in the federal court was begun before resort was had to the state court, and therefore that the jurisdiction of the federal court was exclusive and precluded action in the state court. In this the appellant is invoking a rule which is applicable to suits dealing with specific property and involving actual or potential control over the same, where necessarily the court (whether federal or state) first obtaining jurisdiction of the res must hold it to the exclusion of another. Here the litigation was not of that class, but was of such a nature that it could proceed in both courts, in virtue of their concurrent jurisdiction, until there was a final judgment in one, Kline v. Burke Construction Co., 260 U. S. 226, when that judgment would become conclusive in the other as res judicata. Chicago, Rock Island & Pacific Ry. Co. v. Schendel, 270 U. S. 611, 616; Insurance Co. v. Harris, 97 U. S. 331, 336.
By way of further questioning the state court’s jurisdiction, it is said that the state statutes, rightly p. 477understood, do not invest that court with power to review orders of the Commission relating to interstate commerce, but only such as relate to other subjects, sections 502, 614-89, 614-101 of the Ohio General Code being cited. And by way of questioning that court’s power to render the judgment in question, it is said that the state statute, section 544, General Code, although distinctly empowering the court to reverse, vacate or modify orders of the Commission found unlawful or unreasonable, contains no provision for an affirmance of those not so found. The powers of the state court in these particulars are questions of local law only. That court resolved them against the present contentions, for it both reviewed and affirmed the order. And that resolution is in accord with its earlier and later rulings. Cannon Ball Transportation Co. v. Public Utilities Commission, 113 0. S. 565; Detroit-Cincinnati Coach Line, Inc. v. Public Utilities Commission, 119 0. S. 324; Wheeling Traction Co. v. Public Utilities Commission, 119 0. S. 481. Plainly its solution of these questions of local law must be accepted as controlling in this Court, as they were in the District Court. Standard Oil Co. n . Missouri, 224 U. S. 270, 281; Gasquet v. Lapeyre, 242 U. S. 367, 369; Iowa Central Ry. Co. v. Iowa, 160 U. S. 389, 393.
In the opinion of the state court there is no express mention of the constitutional grounds on which the appellant asked a reversal of the order excluding the loop over the Ohio River at Portsmouth; and from this it is argued that the constitutional validity of the order was not determined, and therefore as to that matter the judgment is not res judicata. But the argument is not sound. The question of the constitutional validity of the order was distinctly presented by the appellant’s petition and necessarily was resolved against him by the judgment affirming the order. Omitting to mention that question in the opinion did not eliminate it from the case or p. 478make the judgment of affirmance any the less an adjudication of it. But while the opinion makes no specific reference to the attack on the constitutional validity of the order, it leaves no doubt that the court regarded that and other objections to the order as untenable, and on that basis affirmed it; for in the opinion the court says, “ The finding of fact by the commission as to the intent and purpose of Grubb in seeking this side loop from Portsmouth to South Portsmouth and return «was amply sustained by the records of the commission, and we see no error in the action of the commission denying that part of the application.”
In his bill the appellant assails the validity of the order upon one ground not brought to the attention of the state court—a ground arising out of the granting to another interstate motor line of a certificate to operate buses over a route including the loop at Portsmouth; and he insists that this ground of objection is not concluded by the judgment of the state court, and therefore is open to examination and adjudication upon its merits by the District Court. But the judgment has a broader operation as res judicata than is thus suggested. The certificate referred to was granted several months before the appellant applied for a certificate and he had personal knowledge of it from the time it was granted. It was shown upon the records of the Commission and was easily accessible when the hearing was had upon his application. Thus it is a matter which, if having the bearing now suggested, could have been brought to the attention of the Commission either at that hearing or in his request for a rehearing, section 543, General Statutes; and, if it was not then given proper effect, he could have brought it to the attention of the state court and have made the same claim in respect of it that is now made in his bill.
The thing presented for adjudication in the case in the state court was the validity of the order, and it was in- p. 479470 Syllabus.
cumbent on the appellant to present in support of his asserted rigfyt of attack every available ground of which he had knowledge. He was not at liberty to prosecute that right by piecemeal, as by presenting a part only of the available grounds and reserving others for another suit, if failing in that. Werlein v. New Orleans, 177 U. S. 390, 398, et seq; United States v. California and Oregon Land Co., 192 U. S. 355, 358.
As the ground just described was available but not put forward the appellant must abide by the rule that a judgment upon the merits in one suit is res judicata in another where the parties and subject matter are the same, not only as respects matters actually presented to sustain or defeat the right asserted, but also as respects any other available matter which might have been presented to that end. Baltimore S. S. Co. v. Phillips, 274 U. S. 316, 319; United States v. Moser, 266 U. S. 236, 241; Cromwell v. County of Sac, 94 U. S. 351, 352.
We think it follows from what has been said that the objections taken to the decree below are so unsubstantial that the motion to affirm without awaiting oral argument should be sustained.
Decree affirmed.
1
The fact that a railway company intervened before the Interstate Commerce Commission to oppose the granting to another railway company of a certificate of public convenience and necessity permitting the latter to abandon one of its stations and to use instead the facilities of a terminal established by other carriers, gives the in98234°—30------31