Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-02-11

ward Mclean declined to discussed the
opinion, saying only that an appncatlon
for a writ Of error to the United States
Supreme Court would be sued out at ohee.
Dissenting Opinion.
Mr.. Justice Van Orsdel in his dissenting
opinion says:
II am unable TO concur in the opinion
and judgment OF the court In this case,
and I believe that its importance war
rants a statement Of my views. The court
has declared unconstitutional an act Of
Congress comforting upon the Supreme
Court of the District OF Columbia judicial
authority to ascertain and decree the
value Of the plant and future extensions
of the Washington Gas Light Company,
which valuation. under the act, estab-
fishes a limitation beyond which the COM
pany may not go in the increase Of its
capital stock
Before declaring a statute unconstitu-
tional courts should resolve every rea-
sonabIe doubt in favor Of Ms validity. and.
IF possible. so construe 1t as to carry into
effect the legislative will. The Washing
ton Gas Light Company is public serv-
ice corporation. Its regulation is a mat
ter Of the highest concern. No narrow
view should be taken in constituting the
power of Congress in enacting laws for
-1its proper control and to restrain It from
disRegardipg the public interests.
Matter Of capitalization. {.
"Thc capitalization Of this company II
an important factor in fixing the price at
which gas shall be sold to the public.
Congress arbitrarily could have provided.
as it did In respect to this corporation In
lthe past. for the increase Of the capital
sstock to a fixed amount. This policy, in
respect to the operation Of a corporation
In which the public is so vitality interested,
without any attempt to ascertain the &C
tual value of its property, would 4nOrd
little protection to the public, and might
: lead to grave abuse. Congress could have
conducted such an investigation itself
and accordingly provided for the issue of
additional stock. or it could have dele
gated the duty of making this investfga-
ton to an officer or body OF ohcers APP
pointed by its authority.
ut is within the power Of the iegisla-
tive department OF the government to I'M
pose upon the executive and judicial
branches duties that, with equal propriety.
might be performed by itself: 1t was not
intended that the legislative, executive
and judiciary departments should be dis
connected wholly from each other. In
less these departments be SO far connect
ed and blemished as to give to each con-
stitutional control over the others, the
degree of separation essential to free
tanned.
!: "The constitution does not define or fix
!, boundaries within which the three de-
! parfments of the government shall exciu-
sively operate. No such narrow con.
struction was contemplated by its franz
ers. Only general limitations were fixed
within which the powers OF the several
departments were prescribed. NO exact
and complete delimitation of the several
departments has yet been defined by the
courts. and it is doubtful IL the problem
will admit of solution.
I. Wide Latitude Given.
Thus II will be observed that Congress
is given wide latitude in comforting special
powers upon the CO coordinate branches OF
the government. II Congress. in the act
in question, has legislated on those mat
ters that exclusively belong to 1t. the
execution of the law may properly be
delegated away. 1t seems that the first
test to be applied Is whether Congress
has acted on all questions embraced In
the act which belong exclusively to the
3 legislative department. 1t Is true that
"a court has no power to fix the amount
of capital stock q corporation may issue.
or to place a limit upon the increase OF
capital stock. Those are matters exclu-
sively within the power of the legislature.
But that power has been exercised by
Congress in the case at bar, and a dis
1tinct limitation has been fixed. 1t shall
not exceed the value of the plant and the
future This tb sa1s
definitely fixed in the act. What has
been imposed upon the court is to ascer-
tain and adjudse by judicial determine
= ton the value of the plant and the future
extensions.
y THAT Congress could have conducted
.this investigation will not, I think. be
disputed, but this fact does not prevent
it from imposing the same duty upon the
0{A - sNlN,
! bia.
!, Value Of Plant.
: The subject here submitted for judicial
: determination il the value Of the plant
4 and its future extensions. The finding OF
1.-THE court on this point Is final and con-
s3clusive upon the company. and furnishes
"a maximum limit beyond which the COM
pany cannot go in the issue Of its CAPT.
.:tai stock. The judgment. instead Of being
+;1ntended to compel the company to COM
..;p1y by issuing stock, is intended to re-
.istrain it within proper bounds II it chooses
$40 exercise the right granted by the act.
~ the company refuses to accept and is
7,sthe the stock, the same end IL accom-
-plished by the judgment. only that it has
had still greater restraining effect than
81 its limitations had been accepted. The
judgment is not only binding upon the
company. but ii is conclusive. There IL no
way In which the capital stock can be In
creased except by strict compliance with
the tsrms OF the decree.
Congress. no doubt. considered that the
: failure Of the company to accept the terms
prescribed by the act could not In any
manner prejudice the public interests.
FfeEce, IL will be observed that the And
ing Of the court either restraints the COM
pany from taking any action whatever. or
compelS obedience to the courts decree.
IT is obvious that IL the company should
= attempt to disobey the judgment OF the
court by issuing stock In excess of the
value found by the court the court would
have jurisdiction to enforce a strict COM
pliance with the terms Of its Decree"
Court May Make Rule.
Continuing Justice Van Orsdel contends
tthat. conceding that Congress could not
confer upon the court the power to make
q rule that would compel party to come
in and defend, it is perfectly competent
for q court TO make a rule by which gen
eral notice may be given. and under which
any party interested may come into court
and be heard.
Such notice by publication made in the
case at bar il held to be sufficient.
In conclusion, he says: "Considering the
plenary powers reposed in Congress by
the Constitution to legislate for the gov
eminent of the District Of Columbia, ! am
of the opinion that the power conferred
{ by the act In question upon the Supreme
Court OF the District Is q constitutional