New-York tribune., 1919-01-11
Judge Hand Dismisses Ac-
ton Of Postal Co. Against
Burleson and Carlton

Judge Learned Hand. in the Federal
District Court Yesterday, dismissed the
suits in equity brought by Clarence
Mackay, az president of the CONNER
cial Gable Company and the Pacific
Cable Company to force Postmaster
General Burleson and Newcomb Carl
ton, president OF the Western Union,
as Director of Cables. to return the
cable lines of TIE Mackay concern
seized after the signing of the armis-
tice.
Judge Eand upholds tho contention
of Assistant United States Attorney
Harold Harper, who argued for the
dismissal of the suits on the ground
Of lack of jurisdiction and want of
equity. Charles E. Hughes, who rep
resented Mr.. Mackay in The argument,
contcnded that the court possessed
power to grant the restraining orders,
and that the seizure was illegal and
void because the war had terminated
within the meaning of the Congress
sional resolution and that Congress had
no power to authorize seizure Of the
cables under the circumstances.
Mr.. Hughes further contended that
proper provision had not been made
for compensation, and that the purpose
was to consolidate the Commercial
company's system with that of the
Western Union Telegraph Company, in
violation of the antitrust act, and to
suppress competition.
Wilson Must Fix Compensation
In his opinion on the compensation
due, Judge Hand says the President
cannot finally delegate this power un-
der the joint resolution. If this opin-
ion is upheld by the higher courts, ac-
cording to William ]. Deegan, secrc-
tary Of the Mackay company, all com
pensation awards made by Postmaster
General Burleson will be invalidated.
Judge Hand said:
the merits and without considering
two questions raised which go to the
jurisdiction of The court. The first is
that the bills pray for injunctions
against the United States; the second
Chat they are in effect directed against
the President. The second question in
wolves this: Whether court shall pass
4 decree which directly contradicts an
order made by the President but which
must necessarily be enforced only
through sanctions dependent upon his
execution of the writ. AS the merits
of the case involve questions of i'm
rortance, it appears to ,ne more de-
sirable to base my decision upon them,
only promising that the preliminary
objections pass without deciding. The
theory Of the bills is twofold. First,
that the seizure of the cable lines on
November 16, 1918, was not justified
by the joint resolution of July 16,
1918; second that the resolution itself
was an insufficient warrant, though its
terms had been followed"
joint resolution authorized the Presi-
dent to seize any cables when he
deemed it necessary for tho national
security and defence" and continues:
''Thc President is vested by the Con-
stitution with certain duties in whose
discharge he is exempt from inquiry
by courts His discharge of these
duties, as the Constitution imposed
them, is in the highest sense a public
use and the committal to him of means
to discharge them falls into the same
category. Therefore, if the President
had asked of Congress the possession
of property for use in his capacity, for
example as commander in chief. it
would have been as lawful for them to
intrust it to him without condition as
though they appropriated money for
his disbursement.
"If so, there was no reason why they
should not have suspended the time
of possession until in his Judgment it
became advisable that he should ac-
quire it. Into the occasion of his ne
cessity they need as little inquire as
though he had asked for it at once.
All that was necessary was that he
should ask for it in some capacity