The Detroit times., 1912-09-14
0. U. R,SPLAI FOR MORE
DELAY IN HAllE CASE
is tHteKtl by eCCURF
Motion for appointment of Ex-
pert Master 10 Take Tes- .
timony Denied
BIC VICTORY TOR CITY
Planned to Have All the Evi-
dence Ready to Submit to
Court by Oct. i

Counsel for the city won o spectao-
uiar victory IN the federal court FRI
day afternoon. when United States
District Judge Arthur ]. Tuttle ruled
that the taking OF testimony in the
Hally ordinance case should continue
4 before Stenographer Leland b. Case.
sitting as q commissioner
Attorney Charles ID. Joslyn, for the
Detroit United railway, had petition
cd the court to change the form OF
procedure NJ once, and appoint as q
master 10 take testimony a man who
would be- an expert In the matter of
railway valuations, and who would be
equipped 70 make rulings on the testt
mony, presented and to present q re-
port that would analyze the testimony
and aid the court in reaching con-
clusiop In the case.
Cooperation Counsel Richard L
Lawson and Attorney Alfred Lucking,
representing the city. opposed Mr..
Joslyn's motion and contend that II
that II merely meant further delay IN
the case, They urged that most or
The testimony was now I'm. that Oct.
1 vas The time hxed by the court for
the completion Of the ID. u. r. testi-
mony, and that II the court wanted
the assistance OF skilled special
master. he could appoint one, after the
testimony 10 completed.
Judge Tuttle In informally announc-
+ ing HIS decision explained that he waA
giving his ruling without prejudice
to any motion that might be made
later for the appointment OF sHe-
cial master.
Attorney Joslyn based his conten-
ton for the appointment OF a special
master upon q decision Of the United
States supreme court In case In
/. volying Lincoln. Neb.y gas company.
IN this case the supreme court de-
clared that q skilled special master
ought 10 have been appointed and
that the decision OF the lower court
ala not carry sufficient detail
Mr.. Joslyn expressed the opinion
that Il would not be necessary to
have All the testimony repeated IL a
new master were appointed now. He
declared that the testimony could be
compieted Just as quickly as under
present conditions and that the new
master appointed could read over the
testimony already given and merely
suggested additional questions that
he would like to have ,propounded TO
the Witnesses.
TwoAprincipal questions were IN
yoived Tin the Haliy suit, said Mr..
Joslyn One was whether a contract
could be made without the consent
Of one OF the parties, and the other
was whether the rate or fare propos!
ed byathe ordinance, five tickets for
Is cents was confiscatory. He argued
that in providing that by running one
car over line where franchise had
expired. the company was agreeing
to the ordinance amounted TO the es-
tablishing OF q contract without the
consent OF one OF the parties thereto,
and he declared that the function o.
the common council was not legisla-
tive, but contractual.
Attorneys Lucking and Lawson both
conterded that the question Of the
value OF the company's property was
not material to the issue, as the Ques-
ton for the court to decide was not
whether the rate Of fare proposed was
confiscatory, but whether the city had
the right TO declare upon what terms
the company could occupy the streets
after the franchises had expired. They
argued that the company knew just
when the franchises were due to ex-
pire, AndsthAt while their expiration
meant a loss to the company 1t meant
corresponding gain for the city.
The attorneys for the city argued
that the Wayne county circuit court
had already supported the city's con-
tention that II has absolute rights in
the streets where franchises have ex-
PRED. and stated that decision from
the Michigan supreme court on that
point il expected within a month
They said that the questions of fact,
raised by the company, were entirely
aside from the. issue, and that the
only question was the legal one,
whether the city owned the streets
and could dictate terms after the ex-
piration OF the franchises. ~.. --'.
Counsel for the railway, on the
other hand, argued that IL the, only
question involved, were one Of law,
the city could have dsmurred In the
Buft, and tnttmated that the city b fHws
yers were afraid 60 take that course
IN court. The attorneys for the city
answered this by saying that the de-
murrer procedure compels a concur
renee in the opposing sides presenta-
ton Of facts, which the city would
not yield, and Mr.. yLucking added that
they had also taken into oonsidera
tion the fact that judges are loath TO
give q decision on points of law. when
the decision would appear to be de-
structiyel OF anybody's property He
said that the aim OF the city's coun-
sel had beer. to have the whole mat
ter come into court In such form that
neither side would have to forego the
presentation of any Of the conten.
tons that It regarded as important,
NoN.UNTON STREET CAR