The Birmingham age-herald., 1917-08-31
SAYS COMMISSIONS DUTY IS VERY PLAIN
Courts Cannot Pass on Ques- tion Until City Voids the
 Tidewater Franchise

To the Editor of The Age-Herald:
 I entirely disagree with the opinion of Mr Weatherly that the decision of the supreme court in the proceedings brought by the city to review the decision of the public service commission anent the sale of the Tidewater properties to the Bir- mingham Railway, Light and Power company, or its dummy.
 The court really decided nothing in that case except that the public service com mission had a certain jurisdiction to speak for the general public, which did not at all infringe on the right of the commission of Birmingham to speak for the interest peculiar to this city, but only supplemented it; and calls the att tention of the Birmingham city commits sion that it is expected to speak for this peculiar part of the public for which it has authority to speak" and that it has failed to do so in the case. (See quotation below) The court says that it did not and could not decide any of the vital equities of the case as it did not have the evidence and aver ments necessary to such g. decision brought before them, or given them to know" by the attorneys representing the interests; and so the major part of that decision is that the city was not proper ly represented in that suit. The court said further that neither the public serv- ice commission, nor the supreme court had original jurisdiction to decide the
 effect of this sale and conveyance on
 the interests of the respective parties;
 and pointed out the power and usual tribunals and proceedings for such ad- indication.
 Now, I charge that the commission of the city of Birmingham has never fn- stituted any proceedings in any court that had jurisdiction over the equities involved in the sale and conveyance of this franchise; and seemingly does not propose to invoke any court of compe- tent jurisdiction to reclaim this import ant asset of the city, but Is letting 1t pass without any contest to the Bir- rningham Railway Light and Power company by default. Neither the pro- ceedings in the United States court, nor in the public service commission, nor in the supreme court have ever brought to an issue the rights of this city to void that franchise as is provided in it's terms, for the simple reason that none of them have jurisdiction to declare forfeiture; and hence, the rights of the city as involved in that matter have not been even where they could be vindicated, and unless the city does for mally declare this franchise void, and does what is necessary to make such declaration the status in that matter. in court of proper jurisdiction, within reasonable time, the city stands to lose this valuable asset forever.
 Why does the city maintain a legal department, with great and trained law yers, under the president of the com mission, if it is not to protect the city's title to its valuable properties and reve- nue producing assets? Here we have the commission buying parks which will be a perpetual drain on its revenue, and at the same time letting these reve- nue producing assets slip through their hands by default to private corpora tion of foreign investors to be made, when the title is perfected by time, the
 basis for an immense bonded debt for the people of this city to pay; who
 wonders that we are forever finding that our income Is inadequate to meet our necessary expenses? Is the present president of the commission the only one who can carry this policy of increas- ing the outgo and deleting the income
 of the city, that he should be proclaimed
 absolutely necessary to the city's solv- ency at this time?
 As proof of what I have said above beg that you print the two excerpts from the decision of the supreme court referred to in the abovesa Let me say that in this matter am notsspeaking for Dr. Barrett, of whose campaign committee I am not a member. and I hope the question am arguing will be determined before the election, in which he is candidate comes. do not know how he stands on this matter and have never consulted him about it. My only purpose is to get the present commissioners to do what seems to be their duty in retaining this franchise to the city
 A. J. DICKINSON. | Birmingham, August 30, 1917.
 1 The excerpts accompanying Dr. Dick | inson's letter are as follows:
 sThe briefs and arguments on either side seem to proceed upon the theory that l the court will in the proceedings render l a Judgment settling the right of the city lin the premises The city has protested | against approval by the public servic. l commission, but we are not given to know that the Birmingham city commission ha: 1 taken any formal official action in tn, way of determining whether the proposed sale and conveyance is consistent witt l the interest of that part of the publit for which it has authority to speak II | respect to it's peculiar interest; but eyer l If we knew that 1t had determined tha question in the negative, still, consider. 1 ing the limited Jurisdiction of the public l service commission and the narrow scop, l of the proceedings in this court, we art unable to see how the expected Judgment l can be rendered consistent with settled | legal principles.
 "It is clear upon the record that thi: court has neither original nor appellate l Jurisdiction in this cause to pass upon l the effects of the city's possible deter imitation, and we must decline the ex- 1 presslon of an unauthoritative opinion | upon facts not shown save by the aver ment of the city's protest. Assuming | doubtfully that the city had the right tc bring the cause here in it's present shape but on that assumption. going as fai as possible in deciding the question ar
 gued. we hold. in brief, that upon th'