The Oskaloosa herald., 1917-08-23
HOLDS UNTIL THE CITY RATES
CASES ARE TRIED.
MEMORANDA BY JUDGE WADE
Opinion AS To Jurisdiction and To
Permanent Restraint of City
Ordinance Held in Allegiance
Until Hearing is Held.

eral Judge Martin j. Wade Saturday
last and attorneys in the case have
been asked to submit an order in &C.
cordance Herewith, pending the trial
for injunction to restrain the city
from enforcing the new rates ordi-
nances. The opinion given by
Judge Martin j. Wade, before whom
application for Temporary injunction
was filed is of memorandum charac.
ter only and ii may be changed. Sig
nature of the court has not been af-
fixed and one of the conditions of
the order of the court will be the fill.
ing of bond of $4,000 in the Gas
case and bond of $4,000 in the
Electricity case, for the proper and
sufficient protection of the patrons
of the gas and electricity from the
time the ordinances in question went
into effect, or were passed. lee.
Ruling of the Court.
In the district court of the United
States, Southern District of Iowa,
Ottumwa Division. .-..
Memorandum of opinion upon APP
plication for temporary injunction.
Oskaloosa & Buxton
Electric Railway Co.
VS..
City of Oskalcosa ct al.
ut will be understood, of course,
that even upon this question of jur-
isdiction, the present ruling is not
final. The parties are entitled to
have this question of jurisdiction
tried out the same as any other ques-
ton, and the only question now be-
fore the court is whether or not up
on the papers it appears that the is
sues presented are such as to pre-
sent a meritorious contest upon
which the parties are entitled to full
trial. If so, they are entitled to
have matters held in status quo pend
ing such hearing, and the granting
of a temporary Injunction constitutes
no adjudication, but is merely inter
Iocutory. | may say, however, that
in view of the cross bill filed by the
Oskaloosa Traction & Light Compa-
ny, joining in the allegations and
prayer of the petition of the plaintiff,
there cannot be any serious question
but what the proper parties are be-
fore the court. They are the stock
holders sand the corporation also.
Upon the qestion as to the urls
diction of the court, based upon the
allegations of the petition with ref
erence to the ordinance, at the pres
ent time | do not feel there can be
any serious doubt, but what the
court has jurisdiction. The dis
tinctiOn between the principles con
tended for by the defendant and the
principle which the plaintiff relies
upon is clearly indicated in Seattle
Company VS.. Railway, 1856 Fed. 1866
70. OF course, to come within the
constitutional prohibition, the act
must be the act of the state but the
| state may act through different
agencies" "A municipal corporation
may be an agency. It's power is gen
orally that of a political subdivision
of the state created by virtue of the
power of the state acting through its
| legislative department" "a munich
| pal ordinance passed pursuant to the
authority of the state which abridge'
| the privileges or immunitieS of a citi
zen or deprives a person of property
without due process of law. may be
therefore, an act of the state prohib
| tied by the constitution"
| The distinction is also pointed ou
| in Parson VS.. City, 1873 Fed. 1874
where it is said: IF then as | view
it compliments substantial remedy
against the ordinances in question il
| the want of power in the city to en-
act them, their relief must be found
in the state courts"
Now, reliance is placed by the de
PENDANT upon the allegation in thu
| petition that the ordinance is void
but it is apparent that any Language
of the petition charging that the or
dinance is void is based upon thu
claim that II Is void because it is con
fiscatory. AS / understand it, there
| is no claim in this case that the cit!
did not have power to enact such al
ordinance, but the claim is that il
enacting such an ordinance in accord
ance with the authority conferred b,
the legislature, the rates fixed arr
unreasonable. The cases relied up
on by counsel are those in which tn
claim was made that the council hat
no power to pass any such ord
nances at all. The state had neve
delegated any such power to tn
council If the city council shoul
pass an ordinance requiring all prop
erty owners to paint their building
white, such ordinance would be void
not because it was an unreasonabl
exercise OF a power conferred by tn
state, but because 1t was an assumI
ton OF power never conferred by tn
state. The distinction lies betwee
the exercise Of a power conferred an
the attempted exercise Of power nc
conferred