The Birmingham age-herald., 1914-01-06
PHONE COMPANY'S
PETITION is DENIED
BY FEDERAL JUDGE
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Continued from Page Five)
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Increased rates. The averment is that
they will refuse to pay. relying upon
cember 12. 1913. This is insufficient to
justify injunctive relief. even if the
court had general equitable jurisdic-
ton of the cause. An order would be
drastic that, enioined $4,000 persons
from refusing to pay the plaintiffs 5
charges, regardless of their ability or
Inability to pay and regardless of what
defenees they might have to the claim,
and in a suit in which but three of the
$4,000 were made parties defendant. 1t
would require clear case for injunc-
tive relief to Justify such action.
Is Situation Changed?
"If the injunction would not lie in
the absence of the ordinance, has the
passage of the ordinance changed the
situation? The ordinance does no more
than express the opinion of the city
commi ssioners that the contract of De-
cember %, 1911 was ID ultra wires in
it's inception, and for that reason null
and void, and Cd that the plaintiff had
preached it by failing TO give the SER
vice required. and an election to re-
scind. 1t is manifest that the courts
and not the commission must determine
between the parties whether or not tho
original contract Is ultra wires, and
whether or not 1t has been preached
as claimed by the commissioners. II
it was valid in it's inception, and has
not been broken subsequently by the
plaintiff, the declarat ton of the COM
missioners contained in the ordinance
to the contrary could make it invalid
on the other hand. If it was ultra
wires when made, or has since been
broken by the plaintiff, 1t would be
just as void in the absence of such d
declaratory ordinance. The ordinance,
at most, expressed the election of the
commissioners to rescind. The burden
was on them after, just as 1T was be-
fore, the passage of the ordinance,
either to show the original invalidity
of the ordinance, or subsequent breach
by the plaintiff Rescission was not
even condition precedent to action,
legal or otherwise, on the part of the
city based on the invalidity of the con-
tract. The passage of such an ordinance
merely declaratory in it's nature, did
not change the situation or the att-
tude of the parties to each other or af-
ford the plaintiff any ground for in
iunctive relief. If it had none before,
and if the subscribers could not have
been enjoined from refusing to pay in
the absence of such an ordinance, they
could not be after and because of its
enactment.
MY opinion is that the bill does not
make out a case for the granting of
an injunction pending the final hear
ing, because it fails to show any state
Legislation impairing the obligation of
the contract of December %, 1911. In
view of this conclusion, 1t is not nee
essary to pass upon the validity of that
contract, or the obligation upon the
city and its Inhabitants, by virtue of
it. to respect the rates provided in II,
and the solution of these questions will
be best determined upon the final hear
ing, If it then appears that the bill
contains equity"
City Officials Much Pleased
City officials were highly pleased yes
terday when they heard of the telephone
decision. Both City Attorney Romaine
Boyd and Commissioner James Weather.
ly. who have been leading the telephone
fight stated they considered the decision
an important preliminary victory for the
city
The decision is an important victory
in my estimation" said Mr.. Westherly
at gives us the right now to regulate
telephone rates as soon as we can get
authority to do so from the state legis-
lature, or, on the other hand, If some pri-
yate individual subscriber should file suit
in the name of the state seeking to lnval-
date the companys franchise, it would
aid such a suit.
Until l have had time to more care
fully examine the decision would not
like to advise the public as to what
method it should pursue in paying or re-
fusing to pay the $3.50 telephone bill
which the company has sent out for this
month. My advice is that they wait
few days, anyhow, before doing any
thing.
What will be the next step in the tele-
phone fight is unknown. The situat tion at
present places theteubscriber at the mercy
of the telephone company. 1t is generally
admitted that If the company wants to
insist on the $40 rate for duplex phones
or $40 rate, for that matter. the sub
scriber would either have to pay it or
order his telephone taken out. The pres