Evening star. [volume] (Washington, D.C.) 1854-1972, 1901-05-22

%. 19O1-16 PAGES.
be the right to take away its cables, poles
and other movable property for utilization
elsewhere or In some other way. And Con-
gress might also grant a franchise to some
other corporation with the right to take
and use the cables and poles Of the de-
PENDANT. provided that provision be made
at the same time for the regular ascer-
tainment and prompt payment OF Just COM
pensatfon for the property taken.-Green-
wood VS.. Freight Company, 1o5. U. s. 1S:
Thornton VS.. Marginal Freight Company.
123, Mass 81.
g. Being a foreign corporation doing
business in the District of Columbia upon
sufferance-a mere occupant at will. with
out the protection Of contract or vested
right-the defendant could be either ex-
PEELED or permitted to remain upon any
ure Of Congress. Power in this respect Is,
at the least, co-extensive with that estab-
lished beyond all question as belonging to
the legislatures Of the states.-Paul VS..
Virginia. s Wall. 1873: waters-Pierce OIL
Company vs.. Texas. III. U. 8. o.
Congress has not exercised this undoubt-
ed power Of expulsion in the case of the
defendant. or commanded it, by name, to
perform its accustomed services at the
fixed rate as the condition of its remain
ing and doing business in the District. The
ACT Is general IN It's leTI1S anu
applies to amy person or any telephone
company doing business In the District"
but the defendant Is the only person or
company so engaged. and. for the time
being at least, the regulation can only have
application to it. The substantial effect Of
the act is to impose the statutory rate as
the condition Of further liberation. The
act is mandatory and the intent of Con-
gress is practically the same as If 1t had
said to the defendant: Accept this rate
or withdraw from the District" Congress
could not. and did not. undertake to COM
pei the defendant to remain in occupation
of the field of operations and carry on
business at the imposed rate against its
will.
In Case of Suspension.
If the defendant, convinced that the rate
fixed by law is ruinously low, had sus-
pended it's business and abandoned all op-
erations within the District, Congress
would have no power over it other than to
compel 1t to remove it's distractions from
the streets and other public places Nor
would the courts, in such event, have any
power to compel the defendant to give its
services to any person. But the defendant
cannot remain and carry it's former
business in defiance of the law PerSiSting
in its business. it must be regarded by the
courts as accepting the condition and COM
ing under obligation to perform its
vices at the statutory rate. So perssting
and at the same time refusing obedience.
it is within the judicial power to compel
defendant to observe the rate fixed by
Congress until such time in the future
1t may voluntarily withdraw from business
or Congress may relieve.
According to this view of the defendants
rights and obligations, the preliminary in
junction was promptly granted, and should
have been perpetuated upon final hearing,
with the limitation before suggested
6. 1t has been further contended on be-
half of the appellee that the act of Con-
gress Is unconstitutional, because it i'm
pairs the obligation of contracts entered
into by the defendant with other persons.
II the act Of Congress undertook to annul
or destroy contracts In the nature Of
grants of private property or vested inter-
ests, the power might we'll be denied. not
by virtue Of any express prohibition Of
power to impair the obligation of con-
tracts, but because such act might be
regarded as the usurpation of judicial
power, as well as the deprivation of prop
erty without due process Of law, or taking
the same without provision for just com
penSatfon No such contracts are in ques-
tfon here All other contracts Of the de-
PENDANT. relating to loans, supplies, royal
ties and services, are incidents of corpo-
rate existence and franchises. All persons
contracting with a corporation in these
particulars do so subject to the dissolu-
ton of corporate existence or the termina-
ton of special franchises by Limitation, by
judicial decree or by repeal where that
power exists. (Mumma VS.. Potomac Co.. 8
Pet, 2S1, 2S7)
All that remains of such contract obli-
cations Is the right IN equity to their
forcement, when practicable. against the
available property of the corporation in
| the act Of winding up It's affairs.
Defendants Right to Do Business.
Z. What We have before said respecting
| the power Of Congress to prescribe an arbi-
| trary service rate as the condition of de-
| PENDANTS right to do business in the Dis
| trict has been upon the assumption. as
| charged in the answer. that the rate is
| ruinously low, that is to say, wholly in
| sufficient to meet the necessary and legiti-
| mate expenses Of the services to be per-
| formed.
| Due respect to the legislative department.
| whose action Is aSSaled, and perfect har-
mony with the principles upon which the
| right of judicial inquiry and interference
| in such instances is founded. require that
| one invoking judicial relief shall show be-
| yond reasonable doubt that the enforce
| ment of the regulation will be destructive
| of property. San Diego Land Co. agt. Ma
tional City, TIA U. s., 739, 754, and cases
| cited
Moreover, the facts from which the con-
| clusion is to be deduced are complex and
| peculiarly within the knowledge of the
| party complaining. If statements and cal
| culatiOnS of cost, expenditure and SO forth
| are misleading or untrue, they often can
not be contradicted, and if uncertain and
! involved, rarely admit Of calculation by
! the opposing party.
In considering the evidence and deter
| mining whether me compensation pre-
| scribed by law is destructive of property,
the basis of estimation in a case like this
| will ordinarily be the reasonable, actual
| value of the property used in the business,
cost Of maintenance and the expense of
carrying on the business properly. San
Diego Land Co. agt. National City, ia,
U. s., 739, 755. 757. In the language of Mr..
| Justice Harlan in that case: What the
company is entitled to demand. in order
that it may have just compensation, is a
| fair return upon the reasonable value of
the property at the time it is being used by
the public. The property may have cost
more than it ought to have cost, and its
outstanding bonds for money borrowed. and
which went into the plant. may be in eX-
cess Of the real value of the property. So
that it cannot be said that the amount
Of such bonds should in every case con-
| troll the question Of rates. although it may
be an element in the inquiry as what is. all
the circumstances considered, Just both to
the company and to the public"
The basis Of actual value is peculiarly
appropriate in this case.