Evening star. [volume] (Washington, D.C.) 1854-1972, 1898-08-04

IAN act making appropriations to provide
for the expenses of the District of Column
bia for the fiscal year ending June 30, 1S90.
and for other purposes. 1t contains but
two sections, the first. embracing all the
appropriations, under head lines indicating
their several objects, covers twenty-one
printed pages; and the second, containing
but five lines, prescribes the forms Of reQut-
sttionS of the Commissioners for the future.
The assignment of designated sum for
the telegraph and telephone service rem
dered to the District government was not
enactment" which Congress desired to re-
peal by the clause fixing the rate of charge
for the use of telephones within the Dis
trfct, for the future. Its purpose and scope
are more accurately described by the SUI
preme Court in 12S u. s.. Georgia Banking
Co. v. Smith, where Mr.. Justice Field ex
amined a similar contention with respect to
clause in section of a railroad charter.
which was prefaced by the word PRO
vided.''
General Purpose of PrOvfsO.
'The general purpose of a proviso. as is
well known, is to except the clause COW
cred by 1t from the general provisions OF a
statute, or from some provisions of it, or
to qualify the operation of the statute in
some particular. But it is often used in
other senses. 1t is a common practice in
legislative proceedings, on the considera-
ton of bills, for parties DESTROYS of Sc
curing amendments to them, to precede
their proposed amendments with the word
Provided, SO as to declare that, notwith-
standing existing provisions, the one thus
eNpl essed is to prevail thus having
greater Specification than would be attach
ed to the conjunction but or and in the
same place, and simply serving to separate
or distinguish the different paragraphs or
sentences. Several illustrations are given
by counsel of the use of the term in this
sense, showing in such cases where an
amend n2:rt has been made, though the pro-
vision following often has no relation to
what precedes it.
I'm % Ency. of Law, p. 1876, the subject
is considered and the result of the authori-
ties as to the application Of the rule
ferred to is thus stated: This rule Is not,
however, absolute, and, If the context re-
Quires, the proviso may be considered as a
limitation extending over more than what
Immediately precedes, may amount IL
an Independent enactment
Among the there cited is L. S.
Ba bbtt, l Black, 90. Congress by the Sd
section of the act of 1852 90 Stat, A. had
declared that registers and receivers of the
land office should be entitled to receive a
certain rate of compensation for services
heretofore performed by them. and ap-
pended to the section two clauses, eacn pre-
ceded by the word provided the first of
which declared that no register or receiver
should receive any compensation for past
services who had charged or received lille
gal lees Inc second was IN these WORDS.
And, provided further, that no register or
receiver shall receive for his services, dur
ing any year a greater compensation than
the maximum now allowed by law
Former Suit Cited.
In a suit brought against a register for
Withholding public monies he insisted that
the second proViso of the act of 1852 was
applicable only to the case mentioned in
the preceding part of the section, and
therefore embraced only fees for services
performed before the passage of that act.
Rut the court held that the proviso re-
ferred to is not limited in its effect to the
section where 1t IS found, but that it was
affirmed by Congress independent
proposition and applies alike to all officers
of this class" The court further held that
this purpose of Congress was clearly i'm
pied in its language, and that what is so
implied in a statute is much part of It
as what is expressed, and that "a thing
within the intention of the makers of
statute is as much within the statute as If
it were within the letter" g How. 565.
L. S. V. Freeman)
To the same effect is the decision in "a
Maryland. 3S6, Mayor of Cumberland v.
Magruder. Judge Miller delivering the
OPINION, overruled the contention and held
that the provision, no matter by what
phrase 1t is preceded, was an unqualified
nesation OF the power as to all manner OF
expenditures to the limit named, until the
Nole Vi tIle people mad approved 1t,
He said: Its language is too plain to be
misunderstood; too imperative to be disre-
safded, and the result 1T seeks to attain
100 statutory and important to be defeat
ed by any nice construction in which it is
round, or the technical word by which it is
prefaced. In respect to position and con-
necuon 1t Is equally potent, if enacted
in a separate section
Ihese utterances are strikingly applicable
to the clause before us. Its language is
OF the most general character; it forbids
al telephone company to charge or receive
more than the designated rates without
the sllghtest intimation that its operation
as to be limited to charges against the
District government. If such had been the
purpose OF Congress, can 1t be doubted 1t
would have secured 1t by the insertion of
a few words limiting it to telephones used
by the District that would have removed
all doubt on the subject. But 1T cannot be
pretended that Congress had any such pur-
pose Tor 1t is matter of universal knowl-
edge and especially well known to the de-
PENDANT company that its purpose was to
apply the statutory rates to every tele-
phone operated by any person or company
in the District of Columbia.
This objection is overruled.
Constitutional Question.
The last objection is addressed to the
question of the constitutionality of the
clause under examination.
Notwithstanding the qualified assent of
lne ueIeHudnt IN the 1nlru section OF the
answer, l do not understand it is denied
that this company is to be regarded as q
common carrier of telephone messages for
hire, and such subject to the power OF
Congress to establish what it may consider
proper rates Of charges for the use of the
telephone service, subject only to the limi-
tation that such use is not required to be
rendered without any reward, or upon
terms SO insufficient and unremunerative as
to deprive it of its property or it's use with
out such compensation, as, under the cir
cumstances, is just to it and to the public
and is secured by the fourteenth amend
ment to the Constitution of the United
States.
The defendant insists the act of June 80
1898, has violated this constitutional safe
guard by prescribing rates W hich are arbi-
trary, unjust, unreasonable and uncon-
scionable, and less than the actual cost to
the defendant of supplying such service to
the Iublic.
These avermentS, set forth in emphatic
terms in its answer, it has undertaken to
establish by affidavits of sundry Of its en-
ployes and officials, and its counsel has in
s;isted in the argument that their correct
ness is established beyond controversy
The admirable opinion of NJ. Justice Har-