The times. [volume] (Washington [D.C.]) 1897-1901, 1900-02-06

In an elaborate opinion. handed dow
yesterday by Justice Barnard, presiding il
Equity Division Nc. 1 OF the Suprem
Court of the District, ii is maintained tina
the act of Congress of June 80, 1898, reg
ulating the rate for telephone Service il
the District. is unconstitutional. unrels9n
able, and unjust. The decision was on al
action brought by patrons of the cnesa
peake and Potomac Telephone Company t,
enforce the law in question, and has beer
awaited with considerable interest.
The court room was crowded yesterda!
morning in anticipation of the decision il
the matter of the petition of James F
Manning & Co, to restrain the telephone
company from removing its instruments
and appliances from the premises Of the
complainants, because they refused to pay
the prices for service established by the
defendant company, and insisted that the
latter accept the rate fixed by the act
of 1895.
Genesis of the Case.
Since the filing of the petition of Man
ming & Co. nearly one hundred other SUBJ
scribers of the Chesapeake and Potomac
Telephone Company have instituted SINH
| lar proceedings. II was then determined
| 10 consolidate the causes and make that
of James f. Manning Co. the test
case.
Upon the filing of The petitions for in
| junction by the patrons of the telephone
| company, in every instance. the court
| granted q temporary order restraining the
defendant from removing its instrument
Gre tt,
any way interfering with its use or serv-
ice.
The LAW under which the proceedings
were instituted provides that lit shall be
unlawful for any person or any telephone
company doing business in the District of
Columbia. to charge or receive more than
$50 per annum for the use of a telephone
on separate wire; $40 for each telephone,
there being not more than two on a wire:
$50 for each telephone. there being not
more than three on a wire. and $25 for
each telephone. there being four or more
on the same wire
Justice Barnard. the full text of whose
opinion appeared in The Times yesterday
afternoon, in effect, held that the tele-
phone subscribers sought relief through
an improper means. He said:
An injunction is remedy to prevent
the doing of some alleged wrong, not to
require the doing of lawful act A man
datory Injunction is proper remedy TO
require the undoing of something which
was inequitable for the defendant to have
done; but the effect OF the Injunction
asked in this case is to compel the de-
PENDANT to go on doing as il did under its
previous contract. II is enjoined also
from removing its property from the
premises of the compliments but that is
only trifling matter. and the telephone
might be left there with slight loss to the
defendant But the principal effect of
the injunction is 10 prevent it from stop
ping or from doing nothing, and 10 re-
quire 1t TO keep going on indefinitely fur
nishing service and supplies
Granting that Congress had the power J
to pass the law, and that the defendant is |
public service corporation, as is claimed, !
is 1t the province of a court of equity to |
compel it to continue to do business with |
or without profit, against its will? II il |
should refuse to perform duty for the |
public or for citizen, which is required |
by its charter, would not a writ Of man.
damus be the proper remedy TO be applied |
for 10 the courts?
The Proper Remedy.
Again. if any person or corporation
were injured by the action Of the defend
ant in refusing to comply either with the
law or fulfill it's contracts. would not an
action for damages afford adequate rem
edy?
The equity courts acquire no new power
by virtue of the act in question
The averment of the comnlafnants is
that their business will be greatly
interrupted and injured. and they
will be put to loss. annoyance and em-
barrassment, for which they will have no
adequate remedy at law There is no
averment that the defendant is insolvent,
Or that the injuries TO be sustained by the
would be irreparable.
The complainants could still conduct
heir business, which is that OF dealers in
marble, as they were Obliged 10 do only
I few years ago by mail messengers. tele-
graph personal interview, or otherwise.
This might be less convenient and more
expensive, but If damage was sustained by
he wrongful refusal of the defendant to
connect them with the exchange could 1t
lot be ascertained and recovered in an ac-
ion at law? These are questions which
Indicate grounds for refusing the injunc- |
ion and dismissing the bill, it seems to
he. based on the want OF jurisdiction and
bsence of equities
The Powers of Congress.
Continuing, the court states:
while Congress has exclusive legislative {
'ower over this District. in the sense
iboye quoted, it is not authorized 10 take ,
Us lot for public building, without just !
or BIS horse from his stable
nd give il TO c, or 10 deprive d OF his
ontract of lease by requiring him to can !
eel the same, and surrender it to E with {
ut consideration. IT, however. BY any
IL can be said that Congress j
s not prohibited by the express provisions
Il the tenth section of Article ! from =
'assing any law impairing the obligation ]
II contracts, still IL is conteDded that the
language of the Fifth Amendment neces-
arily prohibits such legislation, for con- '
racts are property, within the meaning of
hat provision, which cannot be taken .
Without due process of law. The property
4 some persons may be wholly invested in
ontracts with other persons, and will IL
e contended that Congress can arbitrarily
AXE this property right or contract in j
estment away without compensation? :,
an II. in the exercise OF exclusive legis-
alton here. impair a private contract, not d
Interfering with the power TO legislate on y
certain subject. any more than a State =
legislature can do so in a State? In my !,
pinion, this question can only be an :
wered in the negative.
In considering the validity of the law in .
uestion. Justice Barnard said: 9
1T must be first ascertained what rela- =
on, If any. exists between the act and the ,
efendant company. or whether she "
lrpose of the act is necessarily
regulate the charges of the
afendant company. The act by its
rms. is TO take effect Immediately after J.
S passage, and the defendant is the only ~ .
srson or company TO whom 1t could then :,
applicable. If IL could be construed as :,
tended only for The government of any v