Evening star. [volume] (Washington, D.C.) 1854-1972, 1911-10-19
Court Urged to Order Test Be-
fore Passing on Law.
SUPREME COURT is CITED
Its Rulings Declared to Require
Practical Showing.
CONFISCATION IS DENIED
To Hold Law Invalid in Absence of
Proof, It Is Urged, Is to De-
fraud the Public.

A practical test of the working of the
universal transfer system before any ad-
judication as to the constitutionality of
the enactment requiring it, passed by
Congress in 1904, was urged strongly to-
day by Attorney Harry F. Lerch, counsel
for the receiver of the Baltimore and
Washington Transit Company. Without
such trial. counsel claimed, the court
might not properly determine if such re-
quirement of the railroad companies was
"confiscatory or unreasonable.
Mr.. Lerch's argument was made before
Justice Wright in Equity Court No. 2 on
the motion of the Capital Traction Com
pany to dismiss the petition of Arthur
l.. Shreve receiver of the Washington
and Baltimore Transit Company, to COM
pei the traction company to enter into
reciprocal transfer arrangements at 14th
and Kennedy streets.
The closing argument for the Capital
Traction Company will be made late this
afternoon or early next week by AttOr
ney r. Ross Perry.
Cites Supreme Court Ruling.
Mr.. Lerch argued that to hold the uni
versal transfer law unconstitutional be-
fore it has been tried by practical usage
would be in conflict with the rulings of
the United States Supreme Court in re-
cent cases. The court has clearly said,
he contended, that it would not assume
statutes regulating charges by public
service corporations to be "confiscatory
test having been given the requirements
of the enactmentS.
Even II such legislation could be held
unconstitutional on it's face, said Mr..
II a~oh b.
As reason he assigned the fact that
the Baltimore and Washington Transit
Company has offered to indemnify the
traction company against any loss by
reason OF the operation of the statute.
Since no loss can occur to the traction
company by issuing reciprocal transfers
at 14th and Kennedy streets, he urged,
the traction company's counsel cannot
the statute as 'confiscatory and unrea
Sonable."
Attorney Lerch pointed out that the
Capital Traction Company cannot sue
cessfully contend that the universal
transfer law of 1894 is Unconstitutional.
He suggested that the charter of the
Capital Traction Company is dated March
1, 1895. and the universal transfer law
relied on was signed by the President
August e 1894. The United States Su-
cifically held that where a street railway
company takes its charter subject to a
general statute enacted before it accepted
the benefits of it's charter it cannot be
legislation is unconstitutional. The court
says, according to counsel, that the char
ter was taken subject to the prior enact
ment. AS a leading case in point. Mr..
Lerch cited the so-called school childrens S
case of Boston.
Free Transfers, he Says.
In the con,rse of his arp,,menf for tba
traction company, Attorney George T.
Dunlop urged on the court that the pro-
vision requiring his company to accept
and issue transfers to the Washington
and Baltimore Transit Company, If given
the meaning sought 10 be placed on it by
the opposing counsel. in effect constituted
requirement on his company to issue
free" transfers. This requirement, he
contended, Congress was without author
ity to impose on the corporation. He
proceeded to show that the United States
Supreme Court has said explicitly that
the fixing of rates for public service cor
porations is legislative act and not
judicial one. He contended that the
words reciprocal transfer arrangements"
in the statute in controversy does not
refer to transfer tickets" as claimed by
his adversaries, but to physical transfer
ton, he cited number of transfer"
statutes and similar enactments of Con-
gress.
Taking up tho contention Of Mr.. Dunlop
concerning the proposition that the act
REQUIRES a free transfer, Mr.. Lerch con-
tended that the transfers required were
not to be free in the sense that no
revenue would accrue to the traction COM
pany from their issuance. He claimed
the word reciprocal used in connec-
tio u,ifh
rected to be made presupposes division
Of rates between the two companies, al
lowing the traction company to receive
proportion of the cash fare or ticket
value received for the transportation OF
the passenger.
The word reciprocal" said Mr.. Lerch,
appears in the statute of 1894 and the act
of 1908 contains provision that the two
roads in controversy may be entitled IN
conjunction to charge one fare. Con-
gress is presumed, he declared, to have
meant by the earlier statute in using
the word reciprocal that there was
to be a division Of the rate, for to pre-
sumo otherwise. he said. would be to
assume that Congress deliberately at
tempted to enact an unconstitutional
statute. He maintained that the courts
should use every effort to uphold the
constitutionality of statutes.
Give Benefit to Public.
should be construed in exactly opposite
way from the claim of the traction COM
pany. The company claimed, he stated,
that the statutes should be held strictly
In favor of alleged contract rights given
that corporation, whereas MIR. Lerch's
contention is that the United States Su-
preme Court has held uniformly that
every reasonable doubt is to be resolved
adversely to the corporation and in favor
of the public
Referring to the Dartmouth College
case cited by Mr.. Dunlop In his argu-
ments Mr. Lerch declared the law laid
down by the United States Supreme Court
there is now practically obsolete This
was the celebrated case in which Daniel
Webster Is said to have made one of the
greatest arguments recorded In the his
tory of American Jurisprudence.
The charter Of the college, 1t was there
held was a contract. but 1t did not con-
tain a provision reserving to the sover-
eign power the right to repeal. alter or
amend" AS soon as that case became
the law, Mr.. Lerch said, every state
legislature and Congress passed general
statutes expressly reserving the right to
repeal, alter and amend" This power.
he declared. Congress has reserved over
the charters of public service corpora
tions in the District and under this
right, counsel claimed has the power to
regulate the rates of all street car lines
xhc trSo Of CnI Tn