Evening star. [volume] (Washington, D.C.) 1854-1972, 1907-12-07

counsel TOT the gas CoHipohJ icieAiSN
to the fact that in the past Congress
had frequently authorized the judiciary
to ascertain the cost Of extension and
additional stock to be issued by railroad
companies, and referred to the Seibold
case, In 100 United States. 3S1. where
Congress lad vested In the Circuit Court
the power of supervision of elections
They claimed Congress had the right to
ask the court to conduct the present
proceedings. and there was nothing I'M
constitutional in the delegation of such
power to the judiciary.
Given Leave to File Brief.
Justice Gould granted leave to Attorney
John B. Daish, as friend Of the court, T"
to file q brief in favor OF the dismissal
of the application. MIR. Daish In his brief
attacks the constitutionality of the act
of June g. 1896, and claims Congress may
not delegate to the judiciary powers at
tempted to be given by the act, including
the right to ascertain the money value OF
a number of decisions which appear 70
bear out his contention. In conclusion. MT
Daish submits whether or not the duties
imposed by section of the act are or
such nature that a court exercising the
judicial power Of the Con stitution can
take cognizance Of them and whether or
not the pending proceeding 10 case
within the meaning Of article 3, section
of the Constitution. Should these ques-
tons be resolved he says. "in the aftir-
native, 1t is then submitted. that the
court by regulation distinctly and clearly
prescribe the rules for determining the
actual cash value Of the property. with
an eye single to THE fact that the UNI
earned Increment OF this company, as
for all other companies, Is not due to the
ton. but is a natural accretion. the cause
of which lies beyond the pale Of the
corporation"
At the hearing today Mr.. Thomas ap-
peared for the Commissioners and the
gas Ross rry son r. eods
borough and Lambert & Mclean. As
sistant United States Alto ney Mcnamara
was not In court, as no government In
terest was thought to be involved In the
hearing.
Argument by Mr. Thomas.
Corporation Counsel Thomas in his ar
sument in favor Of the dismissal Of the
petition contended that the function Of the
court under section Of the act OF Juna
0, 1890. IL purely ancillary or advisory,
particularly IN reference to the ascertain
ment Of the cash value Of the plant. All
the court is asked to do, he said, and all
the court Is required or allowed to 40
under this section in reference to this
matter is to ascertain the actual cash
Or requested 70 render any Judgment or
decree. 1t is not required to pass upon
any matter Of law. It Is simply permitted
to find. as q result OF a computation. the
actual cash value OF the company's plant
as expressed in currency.
What the company does or what use 1t
makes after this information has been
obtained, Mr.. Thomas said, does not con-
Germ the court. The Information may
never be used or applied. The stock
which IL to be based upon the actual cash
value Of the plant may never be issued
The stockholders OF the company may
refuse TO agree to the increase Of the cap
ital They are not bound and cannot be
bound by any judgment or decree OF the
stock Of the company to an amount equiv
aent to the actual cash value OF the
plant.
Fails to Show steekhoIders' Action.
The petition. according to the corpora
ton counsel, does not set forth that any
action whatever has been taken by the
stockholders or directors Of the company
looking to an increase Of It's capital
stock. The corporation itself proceeds to
file a petition for the purpose OF having
the cash value Of its plant ascertained and
sor valuation Of the costs and expense OF
future enlargenents. 1t Is not pretended.
he said, that the matter has been pre-
scented to the stockholders at all. and
neither they nor the directors are parties
to the psossedins ~. the only way s,,,t that at
bound, he declared. WORLD be through
their acquiescence or estoppel by al.
lowing the issuing OF the stock after the
proceedings were terminated in this case
without objection.
On the point that the duty imposed on
the court In this inquiry Ia not judicial
one Mr.. Thomas referred to remarks
made from the bench by Justice Gould
when the Georgetown company's appiica-
tion was before the court. These re-
marks, he said, are a clear indication that
in the judgment of the court the gas
companies under this section were entitled
to an opinion Of the court. and that they
were neither required to accept nor follow
on them in any way. He submitted that
such q law calls for the exercise OF no
judicial function and relates to nothing
in respect to the exercise of judicial
power.
Judicial Powers Of Court.
Mr.. THOMAS then discussed article III
section I. Of the Constitution, relating tc
the judicial powers of the court. He con-
tended that the power proposed to be con-
TERED by section 8 Is not judicial power
within the meaning Of this section Of the
CONSTRUCTIVE. dLu 10 thSICICLc uhCOHStl-
tutional and cannot lawfully be exercised
by the Supreme Court OF the District OF
Columbia.
Mr.. Thomas cited various authorities
which he claimed sustained this conten.
ton. He then quoted section of the
same article Of the Constitution. which
defines the extent OF judicial power. an6
commended that II a proceeding involves q
right which in It's nature Is susceptible
OF judicial determination and If the de.
termination Of 1t is not simply ancillary
or advisory, but is a Anal and indisputable
basis of action by the parties. 1t is a case
within the meaning Of this provision. The
term case implies the existence Of pres.
ent or possible adverse parties. whose COZ.
tentions are submitted to the court fol
adjudication. The present proceeding, he
claimed. il not a cease within the mean.
ing Of the Constitution because 1t lacks
necessary elements Of the "casa," one
Of which Is Judgment or decree, and In
the matter OF this application the actor
OF the court Is not binding on the parties
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