Evening star., 1896-11-30
ELECTRIC LIGHTING
Judge Cole Refuses to Enjoin the
Commissioners.
THE POTOMAC COMPANY Wins
Right to Lay Conduits East of
Rock Creek Upheld.
AN AP P E A l. n o 7 E d

anu the PCtOmaC Electric ROVER COMPANY :
denying the motion for an injunction and
discharging the rule requiring the defend
ants to show cause. Counsel for the conf
plainant company at once gave notice OF an
appeal to the Court of Appeals.
The suit was FLED last August, the United
States company praying that the Commits
sioners be enjoined from awarding the de-
fendant company a contract for electric
lighting in the city, both east and west of
Rock creek, and also from permitting the
defendant company to occupy the territory
east of Rock creek temporary restrain
ing order subsequently granted. and
the defendants were required to show cause
why it should not be made permanent
Several days the case was eiaborately ar
gUed by Messrs. James X. Redington and
Jere NJ Wilson on behalf of the United
States company. by Mr.. j. ]. Darlington on
behalf of the defendant company, and by
Mr.. A. S. Worthington, special counsel for
the District.
Judge Coles OpiniOn.
Judge Cole said that because of the i'm
portanee of the case and because of the
confidence Of both sides in it's presentation,
he had made his opinion a written one,
that it might hereafter be more conve-
niently referred to. After explaining at
length the circumstances attending the
filing of the suit. Judge Cole said that the
controI ersy at the hearing before him was
narrowed down to the additional lighting,
or necessary extension of such SERVICE"
mentioned in the last District apDropra-
ton bill and the sundry civil bill, both acts
being of June IL, 1896 the complainant
company contending that Ii alone has the
right to occupy the streets of the city east
OF Rock creek That company also con-
tended that the District Commissioners
have no inherent powers to permit wires
for electric lighting purposes to be laid
under the surface of the city streets
Judge Cole referred to the decision of
Chief Justice Bingham. in which the chief
justice held that the Commissioners do
not have any such general powers and
that they can grant such permits only in
pursuance of express or implied authority
tIcm congress. But Judge Cole said that
ooth sides in the present case seemed to
have adopted that decision, and 1t was un-
necessary for him to express an opinion in
the matter, and he did not. for assuming
that to be the law the extracts from both
appropriation bills of June H. 1896 by
necessary implication confer authority
upon the Com missioners to authorize the
laying of all wires under the surface Of
the streets necessary to furnish the light
Ing authorized by them. The language of
the law, said the judge, expressly author
lies the extension of electric lighting to
places not before lighted in that way, pro-
viding that the lamps shall be operated
wholly by means of underground wires.
CommissiOnerx' Power.
1t being admitted that such extension is
necessary, the term in the law extension
of such service" would be nullity, said the
Judge, unless the statute creates an implied
power In the Commissioners of the District
to permit the laying underground of wires
necessary to supply such additional serv-
Ice. Such Implication. he explained Is in
accordance with the rule of Interpretation
that where authority is given by statute
TO do particular thing. it confers all pow
ers necessary for the accomplishment of
the main purpose. and that whatever is
thus necessarily implied In statute is as
much part of 1t as that which is ex-
pressed therein.
Not Confined.
The judge referred to the claim of the
United States company that such permits
are limited to it, but he held that there is
nothing in the acts referred to above to
warrant him in so holding or in holding
that the extensions were to be made only
along the complainant company's under
ground system. Neither has Congress con-
fired the extension of the service to streets
already lighted, and the locality of such
extension had therefore. been left to the
discretion of the District Commissioners
The permitting of any existing company
to construct and extend Conduits in George
town, said the Judge, cannot be held to
prohibit such construction and extension
east of Rock creek. as such Interpretation
would prevent both and all other COM
panies then existing from furnishing the
lighting east of Rock creek. 1t might as
well be contended that the special grant
to permit the complainant company to ex-
tend its wire east of Rock creek to Mt.
Pleasant and Washington and Columbia
Heights is prohibition against their ex-
tension elsewhere, even to do public light
Ing authorized by law.
Congressional Intent.
But the United States Company seemed
70 hoya cd tho;r LOT
general intent of Congress as gathered
else. and Judge Cole then went into the his
tory of electric lighting here furnished
by the acts of Congress from 1888 down to
the present time. Referring to the fail
ure of Congress to pass a bill at its last
session expressly authorizing the defend
ant company to occupy the streets east of
Rock creek, Judge Cole remarked that
Congress had merely failed to grant such
failure should be taken as a direct refusal
TO grant the authority. Nor did he think
that such failure was confirmation of
the complainant company's contention that
1t alone is so authorized, or that Congress
ever intended that 1T should enjoy a mo-
noroly in the matter.
1t was very clear, said Judge Cole, that
Congress has never expressly granted the
complainant company monopoly in the
matter of the occupancy of the public
streets or in the matter of supplying cleo
monopoly must be exactly expressed, leav-
ing no room whatever for doubt in the
matter. If Congress. he said, had intended
to grant the complainant company such a
monopoly it would have expressly named
1t. Congress had not done so Discussing
the various acts of Congress from 1855 to
the present time the judge remarked that
Congress had invariably. he thought, re-
ferred to the extension of the service and
Lot to the extension of any particular
Companys plant. But even II Congress
had. IN previous acts, granted the United
States Company a monopoly in the matter
the power to revoke such an exclusive
right was unquestionably reserved by
Congress, and as in the acts of 1896 the
words maintaining existing service" upon
which the complainant company based its
contention. are omitted, the failure of Com
gress to use those words or equivalent
ones must be taken to evidence the inten-
tion of Congress not to grant any such ex-
elusive rights. That is, remarked the
judge. the change of language must be held
TO evince a change of purpose.
Referring to the contention of the United
States Company that but two of the Com
sioners Joined in awarding the contract,