Evening star., 1901-03-19
ISSUE

Hearing was begun today in the Court of
Appeals of the case OF J. F. Manning &
Co.. appellants. AE4tnst the Chesapeake
and Potomac Telephone Company-the local
telephone Injunction suit. 1t is expected
that the arxuments WIN be in progress for
several days. sAtfof1leys Arthur A. Birney.
John j. Hsmphflks 81. F., Woodard and
Arthur Peter appsaf for the appellants, the
telephone compafp being represented by
Attorneys j. NJ MSlson, E. W. Van Dyke.
Charles L. Frailey and A. s. Worthington.
1t win be reca1led that this case is one
of about ninety hled by different persons,
each of which seeks to compel the tele-
phone comnany to observe the act OF Con-
gress Of June 30-.18A8. fixing the rate to
be thereafter charged for telephone service
In the District Of Columbia, the prayer of
the bill being, in substance, that the de-
fendant company be enjoined from remov-
Ing the telephone equipment In the offices
or compliments, and from refusing to
furnish them telephone service SO long as
they pay rental at the rate fixed by the
statute.
Provision of Law.
The provision Of the law in question is
that from and after the passage Of this
act 1t shall be unlawful for any person or
any telephone company doing business In
the District OF Columbia to charge or re-
ceive more than $50 per annum for the use
OF telephone on a separate wire; $40 for
two on wire: $50 for each telephone
there being not more than three on wire,
and so for each telephone, there being
four or more on the same wire"
Prior to the passage of this statute the
complainantS, merchants in this city, had
entered into contract with the defendant
Tor telephone service at their premises cor
ner Of H and 14th streets. for which they
agreed to pay $145 per annum In quarterly
payments, with right of discount Of $3.50
per quarter for payments in advance, 'un-
til this agreement Is terminated by ten
days notice in writing given by either
party to the otiler,"s which last provision
Is common to all the defendants contracts.
On July 2. 1885, after the enactment Of
the quoted statute, the appellants gave ten
days notice Of their desire to terminate the
contract. and judy IL gave notice they
would retain the telephone at the rate
fixed by Congress-. and remitted $3.50 as
pay In advance for the first quarter year.
The appellee returned the money with the
statement that. tt{ could not furnish tele-
phone servicevat tho rates named In the
act referred to, for the reason, amongst
others, that these rates are less than the
actual cost to itfes cdmpany."
July IA the icompizinants filed their bill
for Injunction cagainst the removal Of the
telephone andnapplfances and discontinu-
ance of the service. After the coming in
OF the answer ian injunction pendente lite
was ordered. upon condition Of continued
payment each quarter at the statute rate.
- Before November II, 1893, fifty other
suits of similar character had been fled
and they were consolidated with this for
purposes of proofs and hearings.
In some twenty-six Of these suits the
complainants had, not given the ten days
notice Of termination of contract This fact
Is the only substantial fact distinguishing
Answers of Defendants.
The answers of the defendant In the sew
eral cases are substantially alike, the de-
fenses set up being: '''
The statute, If valid, has no application
to any Individual desiring telephone ser
vice. but applies only to such service as
may be rendered for the public to the Dis
trict Of Columbia. for the FIRE alarm. po-
lice Ind other public purposes
That the act of, Congress is unconstitu-
tional and void because the rates allowed
by 1t are below the cost of furnishing the
service. and are unreasonably low. -
On nnal hearing the court dismissed the
In submitting the appeal the appellants
maintain that Justice Barnard, in Equity
Court No. 2. erred in holding:
." '"Fhat the court was without Jurisdiction
and that complainant's remedy was by
mandamus or other action at law. -E.4:l
That Congress was without. power to fix
rates for telephone service which should
apply to contracts then existing.
That the statute in question did not at-
ply to contracts tfen existing, and that
the parties to suchEscontracts would be
bound to pay the contract rates until the
contract should Be terminated.
y That the provision In question is uncon-
stftutiOnal and void. 80 ','''-
= That the several complainants were not
entitled to injunctionsa as prayed.
In connection with the argument counsel
fnv fhn rv,fc
fense advanced by the telephone company
Is audacious. The company Is not char
tered by Congress. SO 1t was set FORTH SO
there can be no claim Of a contract right
to pursue its business, which necessarily
involves the use of public property, or to
charge any particular rates
by what means has this foreign corpo-
ration secured vested rights to conduct its
business at a profit in this District?" it
was asked. 80 E
According to the appellants the denial of
Jurisdiction and assertion that the proper
remedy in such cases as this is by man.
damus was a surprise, since the PROPOSE
tion was not asserted by the answer or
suggested by counsel or the court during
the argument before Justice Barnard. Had
the learned judge suggested 1t, 1t was
stated in argument, he would have learned
that at the time Of the filing of this bill
Mr.. o. G. Staples took action by mandam-
us to compel defendant company to fur
nish him telephone service. and that his
petition was denied on the ground that the
statute in force here authorizing a trav-
erse of the return to the writ and trial of
facts applies only Sto proceedings to trv
the right to public. office. and does not ex
tend to proceedings, to secure private
rights, even from pubHc-service CORPORA
ton. 49,. iasrs szssr ..2.-s tt,.-
It was further argued that Congress has
the right to regylatf charges by direct
legislation; that congress- has the power
to- impair the OfAisaafan' of contractss thst
the contention ef tlie answer that the stat.
ute applies only to telephones used by tIa
District of Colusabias us without force. and
that the legal pfRsupptton being in favor
of the validity saf thN statute, the burden
was upon the. defendant to establish its in
validity as an dpevitable conclusion. and
beyond creasonahAe3 doubt. 1t was bound
to show "a .reppgnaecy to the supreme
law Of the land doo CLEAR to admit Of dis
pute." . I'D =.
I'VE cannot but think that this rule was
lost sight of by tsef judge. below. who
dealt with the facts as though to deter
counsel The coYgsst VIII not lightly de-
case the burdenswast tupon the; defendant.