AMERICAN BOND & MORTGAGE CO. et al. v. UNITED STATES.
No. 4291.
Circuit Court of Appeals, Seventh Circuit.
July 9, 1931.
As Modified on Denial of Rehearing Oct. 12, 1931.
52 F.2d 318
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
Fourth. It is further contended by appellant that, even though failure to inspect the track and roadbed could be held to be negligence, yet the evidence does not show that such negligence was the proximate cause of the accident.
We cannot agree with this contention.
If ordinary care required the section foreman and his men to make an inspection of the track and roadbed between Tekamah and Matthews crossing after this rain commenced and before the passage of a train over that part of the road, it would seem to follow that such ordinary care would include the stopping of trains or warning them while such inspection was going on, in order that the inspection might not be futile.
We think the jury was justified in finding, in view of the evidence, that, if such ordinary care had been taken, the accident would not have happened; but that failure to exercise such care was a contributing cause of the accident.
Fifth. Error is predicated by appellant upon the admission in evidence of the statement of the conductor of the train several hours after the accident that “It was raining hard when we went through Tekamah, and we should have stopped, and sent the section crew out ahead of us.”
Assuming that the admission of this statement in evidence was error, yet shortly thereafter it was stricken out and the court forthwith instructed the jury as follows: “The jury will not consider it, and should determine this case as if that evidence had never gone in. And I do now rule it out, and instruct the jury not to consider that evidence. I should not have let it in before as part of the res gestae or otherwise. The jury should try this case and determine it as if that evidence had never been admitted here, as if they had never heard it. It should not influence the verdict in any way, shape or form, and I so instruct the jury.” We think the error, if any, was cured by this emphatic instruction.
Sixth. Error is also predicated by appellant upon the admission in evidence of certain rules of the railroad company touching the conduct of conductors and enginemen; and track foremen and trackmen. It is contended that these rules required a higher degree of care of the employees mentioned than the law required, and that the jury was, therefore, given a wrong impression.
We think there could have been no misapprehension on the part of the jury. The rules were allowed to be introduced for a limited purpose stated by the court at the time of their introduction. In the charge to the jury, the court clearly stated and reiterated that the care required of the defendant was ordinary care only.
Other contentions of appellant have been examined and considered, but do not require discussion.
Our conclusion is that there was substantial evidence to support the verdict and judgment, and that no reversible error is disclosed by the record.
The judgment is affirmed.
George W. Swain, Frank H. Scott, and Edward B. Hayes, all of Chicago, Ill., for appellants.
George E. Q. Johnson, U. S. Atty., of Chicago, Ill., John Lord O‘Brien, Asst. to Atty. Gen., and Charles H. Weston and William G. Davis, Sp. Assts. to Atty. Gen., for the United States.
Appellee brought this suit to enjoin the continued operation of a radio broadcasting station (WMBB-WOK), which was being operated by appellants after the Federal Radio Commission had refused their application for a renewal of license. The District Court granted the injunction, and this appeal followed.
When this appeal was first presented to this court, it appeared to us and to counsel that there were certain questions or propositions of law concerning which instructions from the Supreme Court were desirable, and we accordingly certified such questions or propositions to the Supreme Court, under the supposed authority of
Upon the second presentation of this appeal to this court, appellants narrowed their previous contentions by not pressing their attack upon the constitutionality of the
Appellant American Bond & Mortgage Company, an Illinois corporation, was engaged in selling securities throughout the United States. Appellant Trianon, Inc., an Illinois corporation, operated for profit a public ballroom in Chicago. These two corporations conducted this broadcasting station, using the same transmitter and dividing the expense of operation. The station was located at Homewood, Ill., about 25 miles from the city of Chicago.
Broadcasting at this station dated back to a period before the passage of the first
The Commission set forth its reasons for adopting this order, stating that it was acting in compliance with the equalization requirements of section 5 of the amendatory
Appellants showed that large sums of money (over $100,000) had been expended by them in building their station and in developing their business, and that the benefit of this expenditure would be wholly lost if the order of the Commission were not reversed. They likewise showed that no objection had been made to the manner in which they had conducted their station, and that the only reason for the order of discontinuance was the necessity of reducing the number of broadcasting stations in order that the radio users might secure the maximum enjoyment through lessened interference. It also appeared that public convenience necessitated the regulation of broadcasting stations and the only practical way of eliminating interference was to reduce the number of broadcasting stations.
Without going into the details of the evidence, it may be said that the proof showed that the congressional act was to secure a more even geographical distribution of broadcasting stations and the elimination of trouble, so annoying to the radio users, which arose through interference. It appeared that a 5,000 watt power broadcasting station has a radius of area of good service to suburban dwellers of approximately 100 miles and a radius of area of fair service to rural listeners of approximately 1,000 miles; that a station of such power, however, interfered with another station broadcasting on a similar wave length 3,000 miles away.
Appellants do not now question the necessity of regulation nor the propriety of limiting broadcasting stations in such manner as to give the best service to the possessors and users of radios. Their contention, however, is that the Commission acted arbitrarily when it denied appellants’ permit without providing any compensation for the loss of property, which such order of discontinuance necessarily entailed. Their position, briefly stated, is that in denying a renewal of license to one broadcasting station, which had not offended against the rules of the Commission, solely to reduce the number of such stations, the Commission should have required the other broadcasting stations to pay a fair sum to appellants to compensate them for their loss. They contended that if other licensees did not care to continue upon the condition that they pay appellants for their loss, appellants should have been permitted to continue upon the condition that they pay their proportion of the loss which some other licensee suffered through the loss of its license.
While there seems much of merit in this position, appellee contends that appellants are in no position to make this contention in this suit at this time because of their failure to appeal to the Court of Appeals of the District of Columbia, as provided by
We are well satisfied that there is a vital difference between the rights of one whose property (in coal land such as was considered in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 43 S. Ct. 158, 67 L. Ed. 322) is confiscated by judicial decree and the rights of one to the use of the air, which right is dependent upon a government permit limited both as to extent and time. The former is vested. The latter is permissive.
We are likewise satisfied that appellants are not in a position to attack an order of the Radio Commission which was within its power to make, without first exhausting the remedies given them by the
The view of the Supreme Court on this proposition is clearly indicated in White v. Johnson, 282 U. S. 367, 51 S. Ct. 115, 118, 75 L. Ed. 388, a case similar to the one under consideration, in which similar questions were at the same time certified to the Supreme Court, and in which the certificate was likewise dismissed. But respecting redress against unjust and arbitrary action of
Other authorities, holding that one cannot attack an order such as is here under review without availing himself of all of the remedies provided by the statute for the correction or the modification of the order, are: Gorham Manufacturing Co. v. State Tax Commission of New York, 266 U. S. 265, 269, 45 S. Ct. 80, 69 L. Ed. 279; First National Bank v. Board of Com‘rs of Weld County, 264 U. S. 450, 453, 44 S. Ct. 385, 68 L. Ed. 784.
The decree is affirmed.
On Rehearing.
Appellants’ attack on the constitutionality of the
Appellants argue that the construction of their broadcasting station with its attendant large expenditure of money and its use antedating the enactment of the
At the threshold of our consideration of this question, we are met by the fact that, after the passage of the act assailed, appellants, to secure some of the benefits which followed the federal regulation of broadcasting stations, voluntarily made application for a
permit to conduct a station and accepted a revocable and limited license with the conditions and limitations clearly set forth. The permit, as well as sections of the statutes referred to therein, is also set forth. Such conditions and time limitations restricted appellants’ property rights, as well as its broadcasting privileges. Having sought and secured a government permit or license with its attendant benefits, appellants obviously cannot later assert rights which were surrendered in order to secure the permit. Rome Ry. & Light Co. v. Floyd County, 243 U. S. 257, 37 S. Ct. 291, 61 L. Ed. 706.
We find the legal proposition which is the basis of this conclusion stated in Cooley on Constitutional Limitations (8th Ed.) vol. I, p. 369, as follows: “So a person who obtains a license under a law, and seeks for a time to enjoy the benefits thereof, can not afterwards, and when the license is sought to be revoked, question the constitutionality of the act.” See also Cofman v. Ousterhous, 40 N. D. 390, 168 N. W. 826, 18 A. L. R. 219; Frost v. Corporation Commission, 278 U. S. 515, 527, 49 S. Ct. 235, 73 L. Ed. 483; Buck
Provisions of License
“* * * American Bond and Mortgage Company is hereby authorized to use and operate the radio apparatus * * * for the term ending December 31, 1927, unless this license is sooner suspended or revoked.
“This license shall not vest in the licensee any right to operate in the use of frequencies or wave lengths specified herein, beyond the terms hereof, nor in any other manner nor at any other time or place than authorized herein * * * this license is expressly subject in terms to the right of use or control conferred by Section 6, of the Radio Act. * * *
“As one of the conditions of this license, the licensee is required during the term of this license to render adequate service of the character above specified during the authorized time of operation and a violation of this condition will be considered a ground for the suspension or revocation of this license.
“This license is issued under and in accordance with the Radio Act of 1927, and all of the terms and conditions thereof are made a part hereof as though specifically set out in full herein. * * *”
Provisions of Statute (47 USCA)
“Sec. 81. * * * No * * * corporation shall use or operate any apparatus for the transmission of energy or communications * * * by radio * * * except under and in accordance with this chapter and with a license in that behalf granted under the provisions of this chapter.”
“Sec. 85. * * * No station license shall be granted by the commission * * * until the applicant therefor shall have signed a waiver of any claim to the use of any particular frequency or wave length or of the ether as against the regulatory power of the United States because of the previous use of the same, whether by license or otherwise.”
“Sec. 91. * * * The station license shall not vest in the licensee any right to operate the station nor any right in the use of the frequencies or wave length designated in the license beyond the term thereof nor in any other manner than authorized therein. * * *”
Moreover, we would be compelled to reach the same conclusion even though appellants had not limited or narrowed their asserted rights by applying for and accepting a limited license or permit. For it has been held by the various courts, that have passed upon the question, that the regulation of broadcasting stations is within the expressly delegated power of Congress to regulate interstate commerce. KFKB Broadcasting Ass‘n v. Federal Radio Commission, 60 App. D. C. 79, 47 F.(2d) 670; City of New York v. Federal Radio Commission, 59 App. D. C. 129, 36 F.(2d) 115; General Electric Co. v. Federal Radio Commission, 58 App. D. C. 386, 31 F.(2d) 630; Station WBT v. Poulnot (D. C.) 46 F.(2d) 671. See, also, International Text-Book Co. v. Pigg, 217 U. S. 91, 30 S. Ct. 481, 54 L. Ed. 678, 27 L. R. A. (N. S.) 493, 18 Ann. Cas. 1103; W. U. Telegraph Co. v. Pendleton, 122 U. S. 347, 7 S. Ct. 1126, 30 L. Ed. 1187. In the absence of a single authority holding to the contrary and in view of the reasons set forth as the basis of the above decision, we, too, reach the same conclusion.
Whether Congress was acting within its power to regulate the radio broadcasting stations by ordering certain stations off the air presents, of course, a closer question, which can only be solved by an examination of the facts to ascertain the reasonableness of the Commission‘s order.
The purpose of federal regulation of radio broadcasting stations was obvious. The confusion which resulted from the uncontrolled operation of such stations was ruinous to all commercial enterprises engaged therein, as well as destructive of the benefit which the public enjoyed as a result of the development of the radio industry. There was but one effective method of regulation, to wit, through licensing of stations and the limiting of their use to specific wave lengths and to certain kilowatt power. Such regulation necessarily contemplated a reduction of the number of broadcasting stations, or a limitation of hours a station could broadcast, or the lessening of the area (through reduction of power) through which the wave lengths traveled. If Congress under the Commerce Clause of the Constitution had the power to regulate this subject, it surely could exercise its power in the only manner which would accomplish the desired end, which was through the elimination of a plurality of broadcasting stations operating on the same wave length in the same territory at the same time. Every investment in broadcasting stations was subject to this exercise of reasonable and necessary regulation by Congress. As against such possible regulation there existed no vested right in favor of the investors.
The petition for rehearing is denied.
EVAN A. EVANS
CIRCUIT JUDGE