The Washington herald. [volume] (Washington, D.C.) 1906-1939, 1908-02-12
Court Hats Plan to Increase
Amount of Capital.
VICTORY FOR THE DISTRICT
Court of Appeals Says the supreme
Court Has No Jurisdiction to As
certain Value of Local PIant-Calls
the Law UneOnstitutiOnaI-D
Function Is Legislative.


power in the constitutional sense, and cam
not, therefore, be imposed upon the Su-
preme Court of the District Of Columbia
This is the substance of the opinion of
the Court of Appeals. read by Chief jus
tice Shepard and handed down yesterday,
directing that writ of prohibition issue
against Justice Gould, of the Supreme
Court of the District of Columbia, and
the Washington Gaslight Company to pro-
hibit further proceedings in the COM
panys application TO increase its capital
stock. Justice Van Orsdel delivered a
dissenting opinion.
The courts decision OF yesterday will
also have the effect Of preventing the
Georgetown Gaslight Company from in
cTeasing its capital stock from $4,000 10
30O Co.,
VIII Appeal to United States Court.
Beyond the statement that the case
would be taken TO the Supreme Court OF
the United States, Attorney Wilton J.
Lambert, OF counsel for the Washington
Gaslight Company, declined TO discuss
the action of the Court OF Appeals.
On November 3 last. the Washington
Gaslight Company filed an application
in the Supreme Court of the District. I'M
der section 5, of act of Congress of June
g. 1896. for the ascertainment- of the actual
cash value Of it's plant and the cost OF
fixtures, extensions or engagements of
the same, and upon the finding OF the
auditor, 10 be allowed 10 increase its
capital stock TO the amount which it
was found the plant invoced II IS
VaTiOusly estimated that the plant would
be found 10 be worth from 100000 10
100000 which would mean al increase
of from approximately 100000 20 81 O10,-
000 which would be divided as a bonus
among the stockholders.
The action of the court viii cause an in
definite, If not a permanent postpone
ment of the cutting of this luscious melon.
District Opposes Increase.
Corporation Counsel Thomas. represent
ing the Commissioners, opposed the con-
templated increase, holding that Justice
Gould as a member of the Supreme
Court OF the District of Columbia had
no jurisdiction. as section .. Of the act
referred to, was unconstitutional IN that
the power conferred by this section was
not a judicial power. Justice Gould held.
however. that the power conferred was
a judicial one. that he had jurisdiction,
and that he would entertain the applca-
ton.
Corporation Counsel Thomas theTeupon.
on December II, applied TO the Court of
Appeals for writ of prohibition, and the
court issued a rule for the Washington
Gaslighl Company and Justice Gould 70
show cause why the writ should not issue.
Attorneys r Ross Perry & Son. Wilton
J. Lambert, and Edward H. Mclean, who
appeared upon behalf Of the gas com
pany, maintained that the act was con
sttutiOnal, and that the court below had
jurisdiction. and cited numerous authori-
ties
Justice Gould Answers.
Justice Gould, in his answer. denied the
power Of the Court Of Appeals 10 issue
such a writ, because it had no appellate
jurisdiction in the premises. and that if it
had. the remedy Of the Commissioners was
by appeal He also affirmed the constitu-
tionality Of the act
The opinion of the majority Of the court
held that section 8 of the act referred 10.
is unconstitutional because il attempts
to delegate a legislative function TO the
Supreme Court of the District Of Column
bia.
Congress has unlimited power" the
court holds, Ito amend the charter of
the Washington Gaslight Company. If
it preferred instead Of making its own
inquiry into the values Of the property
as a basis for action. 10 delegate that
inquiry to the municipal officers of the
District, il would have that power.
Delegates Power to Court.
Instead of delegating it to municipal
officers II has undertaken to convert one
Of the courts Of the United States into
such an agency. No judicial power is in
VOWED in the execution of the law. The
determination 10 be made does not in
volve an asserted and contested right
and when made, is not a final and con-
elusive one that may be given effect 10
by the power of the court. The petitioner
is not bound TO act upon the determine
ton, nor is Congress bound by it. Should
the petitioner desire to act upon the de-
termination, Congress would probably
/ have to pass an act amending the charter
to that end, or else provide for the
amendment upon a general law
The court also held that the proceed
| ings were ex parte, and that il failed to
| perceive any substantial difference be-
tween the statute under consideration,
/ and one that would require the same
court to hear evidence relating to al the
conditions of the business Of the gas
company, and thereupon 10 ascertain and
| declare It's rate OF charges to consumers
/ in the District. No one pretends. it holds.
/ that this power could be conferred upon
/ the court.
Constitutional, Says Van OrsdeI.
Justice Van Orsdel. in his opinion dis
/ senting from the majority opinion, held
that the power conferred under section
was constitutional, and the proper dele
cation of a duty upon the Supreme Court
of the District, concluding his opinion by
saying:
/ Considering the plenary powers re-
/ posed in Congress by the constitution to
| legislate for the government Of the Dis
! trict of Columbia, / am of the opinion
| that the power conferred by the act in
question upon the Supreme Court of the
| District is a constitutional delegation of
/ judicial authority"
| Corporation Counsel Thomas was the
recipient OF numerous Congratulations by
| fellow members of the bar yesterday on
account Of the notable victory he won In
| securing the writ of prohibition from
/ the court
| mcfarland Pleased.
! Commissioner Mcfarland. discussing
the decision. said:
THE decision is naturally very crafty
| ing. because ii sustains the contention of
the Commissioners which Corporation
Counsel Thomas ST. ably presented tt is
20 be hoped that 1t will be confirmed
/ = Ill