Evening star. [volume] (Washington, D.C.) 1854-1972, 1896-02-01
Commissioners Without Power to
Grant Wire Permits.
50 SAYS CHIEF JUSTICE BINGHAM
An Opinion Rendered Today in the
Mount Pleasant Case.
CONTROL OF THE STREETS

| CHieI JuSu'e Bingham To-Day decided
that the District Commissioners have no
| general power which authorizes them to
grant permits for the purpose of construct
ing and maintaining electric light and
| power lines in the city or county. He
| therefore continued the restraining orders
heretofore granted by linn in the three
cases in which he today decided the matter.
These cases were Samuel T. Howard and
Anthony Hanlon, Jr., against the District
Commissioners, the Potomac Light and
| Power Company and Oscar T. Crosby and
| Charles A. Lieb. and those of the United
States Electric Light Company and Anton
| Gloetzner and other citizens of Columbia
| Heights against the same defendants.
What Judge Bingham Said.
In delivering his opinion, Chief Justice
Bingham said:
Il do not propose to go into detail in the
disposition of these cases. There are two
or three general propositions, which, 1
think, will determine the question now be-
fore the court. Instead of following what
would seem to be the natural order in
cases of this kind, where the question is
whether the compiainantS are entitled to a
| temporary injunction and, therefore, exam
| lining, first, the right and title of the COM
| plainaLts to main tain the suit, 1 propose
| to examine the question, which is the prin-
| cipal proposition in this case, whether the
Commissioners of the District of Columbia
are authorized by law to grant permits of
| the character which have been granted by
them and which have been the foundation
of this litigation. 1t is averred by the COM
plainants in each Of these cases that the
Commissioners have no such power, and
that they have issued certain permits to
the defendant, the Potomac Light and
Power Company, and the defendants, Cros-
by and Lieb. without any authority of law.
The defendants deny this, and say that the
Commissioners have the power to issue
these permits, and the authority 10 do SO
Is founded upon the general power granted
to the board of public works, by Congress,
in the act of 1871, providing for the terri
tCrial government in this District, and by
the transfer of that power by act of Con-
gresS, from the board of public works 10
the Commissioners Of the District of Co
lumbia when the temporary government
was formed in 1874, and by the continuance
of that power in the Commissioners by the
act ofasTs, which organized the permanent
municipal government in this District.
There are some other authorities cited;
but l understood counsel in argument to
rely upon the statutes which l have Just
menti oned. There IS a statute which is
cited which authorized the Commissioners
OF the District 10 erect posts and provide
lights and lamps anywhere in the District
of Columbia, wnich was enacted. perhaps,
by the territorial legislature; but little poin,
is made of that bv counsel in argument,
and think very little depends on it.
In Appropriation Acts.
TT is also claimed by the complainants
that the provisions in the appropriation
acts passed by Congress, commencing in 1880
and ending perhaps in 1891, are evidence
of the fact that there was power intended
by Congress to be vested in the Commits
s.oners of the District of Columbia, either
at that time or at any former time to &C
cept what was ratified or authorized by
Congress in these appropria ton acts.
The substance Of these statutes was that
the Commissioners might permit electric
light companies to put down their wires for
length of time, and that none should be
put down after that time. The form of the
act is rather in the way of an exclusion of
| the right to put down wires after certain
date, whan viewed in the form which the
defendants claim. In the form which the
compliments claim 1t should be read, or in
the Hgnt of the construction which they
claim should be given to it. these
statutes would mean that while there
is given to the Commissioners pow
er to put up these electric light wires
for limited period, and also to bury in the
earth wires that were at that time strung
upon poles, yet that right is limited in time
and in one of the acts, that of 1883, there
was general exclusion of the fight to put
up overhead wires in the city of Washing
ton; and that right seems never to have
been repealed or changed.
The defendants claim that the effect of
TINS legislation is to snow that it was I'M
eral power in the Commissioners to grant
PERMITS to put UP or put down these wires
Inc compisjnants, as l have already stat
ed, claim that the inference is that there
was no general power to put down wires
and that the wires then in existence ONLY
have validity now because of the fact that
at the time of the enacting of these stat
utes by Congress there was an implied rat
lication of the power, in order to put down
the wires that were then down or in exist
ence or in operation; and that it extended
no further than to the putting down of
such wires IS there was express authority
given to the Commissioners to authorize to
be rut down during the limited period mem
toned in the statutes.
No Inference to De Drawn.
Il have looked over these sta tutes pretty
carefully, and have undertaken to study
them The truth u.s. to my mind, that aside
from the authority as to the general power
of municipal corporations and their rela-
ton to the granting of franchises, and
aside from the construction We must give
to such legislation as had Heretofore been
enacted by Congress in granting power to
this municipal corporation, there is scarce
ly any inference to be drawn one way or
the other. These fragmental statutes en-
podled in appropriation acts are not of so
decided a character, so far as this question
as TO the granting of power is concerned
as that the courts could infer the existence
of such power or the absence of such power
in the municipal corporation They NAV.
the1 efore, be construed to have been enact
ed to be consistent with whatever might
have been the power of the Commissioners
by the general legislation in vesting power
In them up to the time of the enactment
of these pre- visions under the appropriation
acts.
Undoubtedly the passage of these acts
| would have the effect of legalizing all such
wires and lii es had been down at these
dates, and especially all those which, by
virtue of these appropriation acts, We're to
receive compensation for public lighting
1t would not be argued, 1 think, that the
companies whose wires were thus legalfzed
had authority to put down wires or to put
up wires beyond the authority given by
these statutes themselves during the pc
ROD mentioned in the statutes"
Judge Biz CHAM referred also to the con-
tention that the compliments have had the
right ever since 1891 or 1892 when the last
OF these provisions in the appropriation act
was rassed. to put down wires by virtue of
permits granted by the Commissioners, and
said it was not necessary in this case to
decide that.
What Authorities Say,
"As have already SAID" concluded Judge
Bingham, 'the defendants depend upon
this clause in the act orao tipo tho boora -