The Birmingham age-herald., 1917-01-19
Supreme Court Holds Public Service Commission Has
 Jurisdiction Over Merger
CITY ATTORNEY SAYS
 FIGHT WILL CONTINUE
Supreme Court Failed to Pass on Several Questions Involved in Case-More Litigation
 May Follow


 second battle to prevent the purchase of the Tidewater railroad by the Bir- mingham Railway, Light and Power company. The supreme court has ruled that the Alabama public service com mission was within it's Jurisdiction in ruling that the merger was consistent with the public interest.
 The rebuff will not cause the com mission to drop its fight, James weatherly, Commissioner of public utilities. said last night. we will stand on our rights" he said. We are going to maintain that we do have Jurisdiction over street railways that operate over our streets. The plans for the fight before the courts have not been determined inasmuch as the opinion of the supreme court has not been reviewed"
 Virtually, every contention of the city was thrown out by the ruling Of the supreme court. It decided that the Brown bill, authorizing the public service commission to approve of mer- gers, was absolutely constitutional, and that the recent ruling was with in the provisions of this bill
 J. S. Pevear, president of the Bir- InluS ndIH ldilWdys 1l6ht oAi1 ! v" SA company, is in New York city and hence no. statement could be obtained from him. There is rejoicing among those who favor the merger, which will enable the bondholders of the Tidewater to be partly reimbursed and which will afford the users of the Tidewater with transfers on the lines of the Birmingham Railway. Light and Power company lines. and vice versa.
 CITY IS PERSISTENT
 This group of men marvels at the persistence with which the city is fighting the merger. For they point to the fact that the city's legal forces were routed before the public service commission and were again defeated when the contention was carried to the supreme tribunal of the state. And, confidently, they predict that the courts will uphold the decision of the public service commission again no matter from what angle 1t is attacked. The supreme court made it plain that if the city had any rights under it's franchise granted to the Tidewater to object to a consolidation 1t would have to institute other proceedings to fore- stall the merger.
 Tn view of the declaration of MT. Weatherly that the fight would be continued, it is supposed that there will be other delays before the pro- posed merger is consummated.
 It is the opinion of City Attorney Ullman that the decision does not dis pose of the question. but merely de- lays the decision until some other liti- gation is instituted.
 His statement regarding the ruling reads:
 ULLMAN TALKS
 T have not seen the opinion of the su- preme court in the Tidewater case, but called the attorney generals office on the telephone this morning and asked MT. Brown, assistant attorney general, as to what the decision was and he stated to me that the supreme court had held that the public service commission was acting within its Jurisdiction in deter mining whether or not the proposed merger was consistent with the public in terest, and that the court could not review it's findings on the facts in this proceed ing on account of the nature of the pro- ceeding, and on account of the fact that the evidence submitted to the public service commission was not brought be- fore the supreme court.
 He further stated that the court had held that it was not condition precedent to the exercise of the jurisdiction by the public service commission that the city's consent to the merger should have first been obtained.
 WILL HAVE TO ASSERT RIGHTS
 He further stated that if the city has any rights under it's franchiHe granted to the Tidewater, or under tfae law. to object to the consolidation, they will have to assert those rights in some other pro- ceeding instituted to that end, and that this case was not the proper proceeding in which to determine that question.
 "He further stated that the court held that the proposed merger was not neces- sar'ly the creation of a monopoly in vio- lation of the statutes of Alabama, and that, therefore whether under the facts in this particular case a monopoly was created was not properly before the su- preme court for decision and was not de- cided.
 He further stated that the sum and substance of the decision is that the Brown bill authorizing the public serv- Ice commission to approve of mergers when consistent with the public interest was constitutional and that the action by the public service commission in this case was within the provisions of that bill'
 There was ray of hope for the city when the holding indicated that the municipal authorities also would have the right to say whether or not public service property should be transferred or merged but left the question for future consideration. If this indication is upheld in a future decision the public utility property will not be final. but it will be nec- essary to obtain the consent also of the municipal government
 Referring to the protest of the city commission of Birmingham against the proposed transfer on the ground that portion of the Tidewater lines was