Evening star., 1895-07-16
How the District Government Was
Caught Mapping.
RAILROAD COMPANY GAINED 4 DELAY
An Opinion in Which Many District
Lawyers Concur.
THE QUESTION OF APPEAL

There is belief quite generally held by
the members Of the bar at least by those
with whom q Star reporter today con-
verscd. that IL the case of the lexington
and Soldiers Home Railway Company
against the District Commissioners counsel
for the Commissioners were caught nap
ping by counsel on the other side. Of
course. ii Is not seriously doubted that the
real purpose of the company in bringing
the suit for an injunction, to restrain the
threatened Interference on the part of the
Commissioners with the company's use of
their overhead wires on New York avenue
after the 1st instant, was that Of delay
only.
No one familiar with the law in the mat
ter believed for a moment that the injunc-
tion would be granted and hence the Com
mtSSioners were expected to so conduct the
case as to prevent the plainly evident pur-
pose OF the company: that is, to prevent
the company from tying their hands until
the next session Of Congress, when, 1t Is
equally evident, the company hope to Sc
cure, by legislative enactment, that which
the court has just decided could not be OBJ
tained by an appeal to the courts.
Therefore, the action of counsel for the
Commissioners IN permitting the case to get
into such shape as to enable the company
to obtain the much-ccveted delay has been
matter of genuine surprise Especially
We're those lawyers astonished who In
dorse the following opinion of Mr.. Clar-
ence A. Brandenberg of the District bar
and who agree that this delay could have
been prevented, and the Commissioners left
free from any and all legal obstacles to
proceed to tear down the poles and wires
OF the company, and in that way enforce
the law. The opinion of Mr.. Brandenberg
Is concurred in by not few other mem
bers of the bar with whom a Star reporter
today conversed.
Mr.. Brandenberg's Opinion.
"As l understand the case,'' said Mr..
Brandenberg, "the lexington road filed a
bill to restrain the threatened removal of
its poles At the time of filing the bill the
court granted a temporary restraining or
der. There is substantial difference be-
tween an injunction. granted by a court
on final hearing, and a temporary restrain
Ing order issued upon an ex parte applica-
tion, both as to effect and right of appeal.
AS soon as the Commissioners filed their
answer to the BILL the attorney for the rail-
road company calendared the cause for
hearing on bill and answer. hoping in this
manner to put the case off until fall. The
Commissioners. instead Of acceding to this
position. apparently consented to a hearing
on bill and answer, or, at all events, the
case was so heard.
If instead of consenting to hearing
on bill and answer. the Commissioners had
met the position Of the railroad and con-
U
the merits. or had insisted upon their right
tc postponement of hearing on the mer-
Its Of the case until the case was reached
In due course on the assignment, and at
the same time had accompanied their an
swer with a motion to dissolve the re-
straining order, 1t seems to me the contro-
versy by this time would have been prac-
tically ended. On this motion the court
charged the temporary restraining order
This would have left the Commissioners un-
restrained and untrammeled. From the or
der OF court dissolving the restraining or
der no appeal would lie to the Court of
Appeals. This has been distinctly decided
by the Court OF Appeals In the case of
Harris 2. Hurst VS.. William H. Saunders
ct al, decided on December 10, 1894, and
reported in % Law Reporter 81. That
case Is on all .fours with this one
There bill was filed to procure the can
collation. OF lease and to restrain the en-
9orcement Of Judgment in a landlord and
tenant case. A temporary restraining or
der was issued upon the application of the
complainant at the time Of fling his bill.
Upon the coming In of the answer Saun-
ders moved to dissolve the restraining or
der, and 1t was dissolved. From the order
Of dissolution, which made no other dispo-
sition of the subject matter Of the con-
troversy. the complainant in the case ap-
pealed to the Court of Appeals In that
case the court held:
1T is difficult to see by what rule of law
this appeal can be sustained. = The
order appealed flcm is plainly an inter-
locutory order, from which 1t is well set
tied that no appeal will he, and it does not
fall under the category of interlocutory or
ders, from which, under the seventh sec
ton OF tie act creating this court, an ap-
peal is specially provided For 1t is not an
order by which the possession of property
Is changed or affected. The order
appealed from Is not even the dissolution
OF an Injunction, but merely Of Temporal
~ restraining order, and while the grant
ing Of an injur ction is enumerated among
the orders that affect or change the pos
session of property, 1t Is difficult to see
now the dissolution Of a restraining order
can by any course Of reasoning be brought
into the same category
Some attorneys have thought that the
more recent case Of the u. s. Electric
Lighting Co. agt. the Metropolitan Club
has modified or changed the law as pro-
nounced by the court in the case of Hurst
agt. Saunders. but 1t will be noted that in
the former case the appeal was from an
order granting temporary restraining or
der, which is materially different, as point
ed out by the Court of Appeals in the de-
cision quoted.
1T seems to me. therefore, that had the
nearing been simply upon a motion to dis
solve tho temporary restraining order, the
motion would necessarily have been grant
ed and from this order no appeal would
he The case was. however, heard on bill
ana answer and a final order or decree OBJ
tained dismissing the bill. OF course, from
q hnal order an appeal lies to the Court Of
Appeals. but such an appeal would not, in
my opinion. operate to keep alive the re-
straining order. That has been dissolved.
The temporary restraining order was an
incident merely to the relief sought. To
hold an appeal from a final order dis
missing bill keeps In force a Temporary
restraining order would be to hold that
any act sought to be done could be- re-
strained fer months, although the person
making the application for that purpose
sEeuld. be without a shadow of right to
the relief he seeks"
How the People May Win.
A correspondent Of The Star quotes from
an editorial in The Star of Friday the fol-
lowing: rs there no other way of checking
the fragrant defiance of law involved In the
continued illegal use Of the overhead
wires?" and then proceeds to answer the
query as follows:
Yes. there is one very effective way If
the people of lexington and Brookland,
VINO are the most interested parties, would
emulate the example of the people Of An
acostia, and, even at some personal incon-
Venlence. refuse to further patronize the
foad, the lexington company would soon
cease to use the trolley. Your correspond-
ent. Tor one. will not be an accessory to the
lexington company's defiance of the law.
The suggestion, made elsewhere in The
Star, that IL the wires should break the
tNr,nr 1trV-t