New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1918-12-28
Gable Seizure
Case Argued in
Federal Court
Government Alleges No
Jurisdiction, as United
States Cannot Be Sued

Argument nthe motion Of the gov
ernment to dismiss the bill Of COM
plant in the injunction suit brought
by the Commercial Gable Company
and the Commercial Pacific Cable Com
pany to cnjoin Postmaster General
Burleson and Newcomb Carlton. direc-
tor of cables from further control Of
, the Commercial cables was begun yes
terday and completed last night before
Judge Learned Hand in the Federal
/ District Court
A. the conclu sion of tho hearing
Judge Hand agreed TO cons sder briefs.
which will be submitted next Friday
by Edward f. Mclennen, special as
sistant to the Attorney General and
( Harold Harper, Assistant United States
Attorney representing the government,
/ and Charles Evans Hughes and William
! W. Cook on behalf Of the complanants.
The Governments Contention
+ The governments main contentious
were that the court has no jurisdiction
and that there is TO tenable action in
/ equity.
The chief contentious of the com
plainants as outlined by their counsel
We're that the cables were seized after
! the armisticc was signed and fighting
powerng the President to seize the
cables did not empower him to dele
! gate Postmaster General Burleson to
act for him, and that the matter OF
! compensation was not mentioned and
this rendered the act uncoRstitutional.
| Clarence II. Wackay, president of the
! Commercial Gable Company, was in
the court troom during most OF the
day Mr.. Carlton and Mr.. Burleson did
! not attend the hearing
Mr.. Harper, opening the argument
! for the govern ment, contendlng that the
court lacks jurisdiction. said that Post
master General Bureson and Ml. Carl
! ton arc not the real defendants; that
the United States is the vital defendant
and cannot be heard before the court.
Only Acted on Orders
"Mr. Carlton has done nothing" Nh.
Harper continued, "eXcept at the com
nand Of the Postmaster General, and
/ the Postmaster General has done moth
ing except at the command of the
President, who was empowered by Con
gress under its act Of July 16, 1918. to
take possession and assume control OF
any telegraph, telephone, marine cable
or radio system whenever he shall deem
it necessary for the national security
or defence"
Asserting that there is no equity in
the bill Mr.. Harper said the bill urges
! that the Joint resolution Of July Is IS
unconstitutional in that adequate pro
vision is not made for compensation.
He said Congress could not make spe
cfic appropriation in advance OF know
ing whas cables would be taken over
and what amount would be necessary.
He pointed out that the resolution
provides that if the amount for conf
pensation determined is unsatisfactory
to the owner entitled to receive it, such
person shall be paid rs per cent of the
amount and shall be entitled to sue
in court of claims to recover such
further sum as would make adequate
compensation
Says War Is Not Over
Speaking of the contention in the bill
that the war is over, Mr.. Harper SAID
that the war is not over, and was not
over when the cables were taken over.
MI McClcnnen argued that the court
had 10 jurisdiction because the Cnlted
States cannot be sued except when IT
has given its consent TO be sued, and
that the government had not gwen such
consent in this case He declared that
no one has the authority to submit the
United States TO thc jurisdiction of any
court, and that such an in JUNCTION as is
sought would be futile because the
President could merely appoint others
in placc Of the defendants.
Nh. Hughes began bis argument by
! rcferring to the allegations made in the
bill Of complaint. He declared that on
November Is Mr.. Burelson announced
that he had seized and taken possession
of all the marine cables owned by
American companies. The only author
ity for that action, Mir. Hughes said.
was asserted to be the proclamation OF
the President, said to be in pursuance
OF the resolution Of Congress OF July
16.
Oily for National Defence
"That resolution as view it," he went
on. "did not authorize the President tc
seize the marine cables at any time
durin ga mere technical state of war
It authorized the President to seize
the cables only in case of impending
danger to the national security OF de
fence.
"That was a limitation as we! AS
grant of power. 1t defined the cmcr
gencv in which alone that power was tt
be exercised. AT the time there was ne
need of seizure or menace to the ma
tional security
,o,,t have intCrpo1atpI the re