The Oskaloosa herald., 1917-08-23
A TEMPORARY
INJUNCTION
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.

Until Hearing Is Held.
I The following memorandum opin
ion in the Oskaloosa Public Utilities
rate cases was handed down by Fed
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 il 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 fl
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. 90"
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 Oskaloosa ct al.
at 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 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 temporary Injunction constitutes
no adjudication, but is merely inter
locutory. / 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 'and the corporation also.
Upon the qestion as to the urls
diction of the court, based upon the
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. 1856
TO- 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 abridges
the privileges or immunities of 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 out
in, Parson VS.. City, 1873 Fed. 184.
where it is said: IF then as l view
it compliments substantial remedy
against the ordinances in question is
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 the
petition IndJ lHe OTulHdHCe 10 NOIu,
but it is apparent that any language
of the petition charging that the or
dinance is void is based upon the
claim that ii is void because it is con-
fiscatory. AS | understand it, there
is no claim in this case that the city
did not have power to enact such an
ordinance, but the claim is that in
enacting such an ordinance in accord
ance with the authority conferred by
the legislature, the rates fixed are
unreasonable. The cases relied up
on by counsel are those in which the
claim was made that the council had
no power to pass any such ordi-
nances at all. The state had never
delegated any such power to the
council. If the city council should
pass an ordinance requiring all prop
erty owners to paint their buildings
white, such ordinance would be void,
not because 1t was an unreasonable
exercise of power conferred by the
state, but because 1t was an assumpr
ton of power never conferred by the
state. The distinction lies between
o. n a