Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-02-11
ORDER CALLS HALT
IN GAS INQUIRY
Against Local Corporations
Application for Stock Increase
A WRIT OF PROHIBITION
A WRIT OF PROHIBITION
Action Today by Majority of Court
of Appeals.
CASE TO GO TO HIGHEST COURT
Opinion Holds That Section 5 Of the
Act of June 6, 1896, Is un-
constitutional.

The Court of Appeals of the
District, in an opinion by Chief
Justice Shepard. today directed >
the writ of prohibition to issue
against Justice Gould of the Dis
trict Supreme Court and the
Washington Gaslight Company
to prohibit further proceedings in
the company's application to in
crease its capital stock. A dis
senting opinion was rendered by
Mr.. Justice Van Orsdel.
The opinion of the ma jority of the court
holds that section Of the act OF June
q. 1896. is unconstitutional. because II at
tempts to delegate legislative function
to the Supreme Court OF the District Of
Columbia. The duty of ascertaining the
value of the plant and it's future exesa-
sions and enlargements, as a basis for in
creasing its capital stock, the court de-
clares, is a legislative one, involving the
exercise of no judicial power in a con-
stitutional sense and cannot, therefore,
be imposed on the Supreme Court Of the
District of Columbia.
The power given by the statute. 1t Is de-
clared. is conferred upon the court as
such and not upon any justice thereof
as special commissioner
Congress has unlimited power" the
chief Justice says, Ito amend the charter
OF the Washington Gas Light Company.
increasing its capital stock at will. II IL
preferred, instead OF making its own in
fvafn
a basis for action, to delegate that in
quiry to the municipal oficers Of the
District. 1t would have that power. In
stead OF delegating 1t to municipal omcers
1t has undertaken to convert one Of the
courts OF the United States into such an
agency. No judicial power is involved in
the execution OF the law. The determine
tion to be made does not involve an as
serted and contested right. and when
made Is not a final and conclusive one
that may be given effect to by the power
of the court The petitioner is not bound
to act upon the determination. nor is
Congress bound by IT. Should the pc
titioner desire to act upon the determine
ton. Congress would probably have 10
pass an act amending the charter to
that end or else provide for the amend
ment upon a general law.
In pursuing either course. 1t may adopt
amount Of capital stock. On the other
hand. it might repeal the former act and
prescribe an entirely different rule.
Proceeding Elk Parte.
"Again. it is held. the proceeding au-
thorized is ex parte. No provision 10
made for opposing parties. or a contest
Of the application. 1t is true the same
court is authorized to. make regulations
for the procedure, but 1t Is given no
power to make the United States or Dis
trfct Of Columbia parties thereto Nor
could such discretionary power be dele
gated: it must be exercised by Congress
ITSELF"
The particular question as presented
court the opinion asserts, but the gov
erning principle Is held to be plain and
laid down in a number Of cases cited
The cases relied on by counsel for the
gas company are reviewed at length. and
differentiated from the case at bar, and
the court remarks in conclusion:
We fail to perceive any substantial
difference between the statute under con-
sideration In the case and one that would
require the same court to hear evidence re-
lating to all the conditions of the business
of the gas company, and thereupon to as
certain and declare its rate of charges
to consumers of gas I'm the District. No
one pretends that this power could lie
conferred upon the court"
The court then passes to the considera-
ton Of its power to issue a writ OF pro-
IL
claim no inherent experimenting or SUI
pervisory power over the inferior courts
of the District. jurisdiction to grant such
writs is conferred by the act creating
the court. and its amendatory acts.
In conclusion Chief Justice Shepard
says:
Apparently No Other Remedy.
There appears to be no other remedy in
this case While the gas company might
have the right OF appeal from an order
Of the court below. refusing the relief
prayed, there is no corresponding right
re lief. for there is no adverse party
against whom the order runs. Neither
the District Commissioners nor the At
torney General. to whom notice of the
hearing was given. presumably
as repre- Sentatives Of the public inter-
ests. could appeal from the order. because
they are not made by the act parties to
the proceedings. Should the hearing con-
teDnplated in the court proceed to a final
the possible injury to the
public interests apprehended by the rep
rese natives thereof could not be averted.
Notwithstanding the powers attempted
to be conferred upon the Supreme Court
of the District Of Columbia are not judi
cial in the constitutional sense they are
in that they are conducted.
in a measure. under judicial forms and
rules leading to the announcement of
an order thereon by judicial officer The
exercise of the powers We have held to
be unlawful. Therefore. as it's exercise
might possibly result in injury for which
-herc is no adequate remedy. we will order
the writ Of prohibition to issue to pro-
nibit further proceedings in the court
below. The costs of the proceedings will
De adjudged against the Washington Gas
Light Company"
Pleases Corporation Counsel.
Corporation Counsel Thomas is much
elated over the opinion which sustains his
that the act of June 6, 1895.
Is unconstitutional. He expressed the
opinion that not only would the order put
a stop to further proceedings on the appli-
cations OF the Washington Gas Light Com
pany. blu: would probably prevent the rat
fcation by Justice Gould Of the report
Of Auditor Payne on the value of the plant
,f the georgetown Gas Light Company. Mr..
Thomas says the points made by him
IN his exceptions 10 the auditors report
are Identical with those made on his Pc
.ition for the writ of prohibition. which
has just been granted.
AttorneXs r. Ross Perry & Son. r. H.
Wilton J. Lambert and ID