The New York herald., 1921-11-08
Corporation Counsel O'Brien
Opposes Application Made
by Interborough.
OTHER CITIES AROUSED
Rochester, Elmira, Buffalo and
Niagara Falls Represented
at Washington.
Special Despatch to THE New York HERALD.
New York Herald Bureau,
Nm. [

troversy found it6 way into the United
States Supreme Court today in an un-
expected manner.
When the court convened Louis r.
Carpenter, on behalf of James L.
Quackenbush. counsel for the Inter-
borough Rapid Transit Company.
asked permission to file brief In the
Chicago traction rate case, which Is
up for hearing tomorrow.
The Chicago case contains many OF
the elements OF the New York city
traction litigation, and 1t is expected
it will stand as precedent for the set
Ting Of disputes over public utility
rate increases in cities all over the
country. The Illinois State Supreme
Court already has decided the case
against the city of Chicago and 1t has
been appealed TO the United States
Supreme Court.
Counsel for the city Of New York,
including Senator Hiram Johnson of
California. Corporation Counsel John
y. OBrien OF New York and his as
sistants. William E. C. Mayer and Ed
gar j. Kohler, were on hand to COM
Dat Mr.. Quacken0ush's move. Sena-
tor Johnson asked permission to file
g. brief on behalf of the city il the
court granted Mr.. Quackenbush's re-
quest.
Chief Justice Taft announced that the
court would take the requests under ad-
visement and 1t is expected decision
Will be rendered tomorrow when the
Chicago case is argued.
Points in Roads Brief.
In his brief. Mr.. Carpenter presented
this argument. bearing on the New York
city case:
"The State Of Illinois. by altering or
authorizing an alteration Of rate' pro-
visions of the franchise ordinances and
thereby modifying or waiving rights or
obligations Of the city Hereunder.
whether contractural or otherwise, In
vades no constitutional right which the
city alone may assert against the State.
'The real question here is not as to
the exact nature Of the agreement which
has been made between the city and the
street railway companies. or whether. as
between these parties. a contract right
of the city has been changed or I'm
raised, but whether or not the city has
p contract right to continue the exercise
OF control over a governmental matter
rs a State agency, which may not be al
tered or withdrawn by the State without
contravening the contract clause of the
Federal Constitution.
"The ordinance in question, while NOM
inally an arrangement between the city
and the street railways. was in reality
a grant from the State to The street
railway companies In gfa1ting fran
chises for public service, the municipal
corpora tions are discharging a govern
mental function as agents OF the State
and this court has recently referred 10
municipa titles as governmental agencies
In granting such franchises and fixing
therein the rates to be charged"
O'Brien. Questions Sincerity.
Corporation Counsel O'Brien issued q
statement vigorously denouncing Mr.
Quackenbush's move as IAN attempt TO
steal march on the city Of New York"
THE Chicago case involves the five
cent fare issue and the decision in I.
will affect the fare question In many
cities" said Mr.. O'Brien. 1T involves
the power of the Public Service Commits
zion to raise rates of fare in spite Of and
In derogation of an express, positive pro-
vision in franchises prescribing a five
cent fare. contractuai IN it's nature
'while the traffic question involving
fares has been presented in minor as
poets TO the Supreme Court since the war;
this is the first time the power Of the
state Legislature, through the Public
Utilities Commission, to override and
nullify the five cent fare In franchise
contracts has come up before this court
Holding back until the last minute
with the thought Of concealng It's move
the Interborough Rapid Transit Company
Of New York city. which has been con-
testing Mayor Hylans position on the
five cent fare proposition. made a move
20 present Its views upon the legal ques-
ions involved In the Chicago case to the
United States Supreme Court hoping that
the Now York city authorities would be
asieep at the switch"
Similar requests for leave to file briefs
we're made by Assistant Corporation
counsel Rupp of Buffalo, Corporntion
Counsel Moore Of Niagara Falls, Special
Assistant Corporation Counsel Byrd Nc
Dowell OF Elmira, and Corporation
Counsel Pierce of Rochester.
While the issues in the Chicago case
in some aspects approach the situation
chlses I'm New York city. there are essen
tial differences. the New York courts
having In various decisions taken posi-
tlon directly opposite to that of the III
nois Supreme Court: so that the decision
20 be handed down by the court In the
Chicago case will not necessarily be con-
rolling in the Now York city traction
itgations. which inevitably will reach
tho United States Supreme Court.
perusal of Mr.. Quackenbush's brief
which he seeks permission to file In the
United states Supreme Court DISCLOSE
not a single reference TO the New Yorl;
rry iitigations. the Interborough's par
ticipation In them. nor TO the decisions
rendered In the Court Of Appeals of New
York State.
Corporation Counsel O'Brien was In
dignant over the attempt on the part OF
tho traction people to present Its legal
Views and contentious In the Chicago
case. which he said was an effort to
forestall New York city In its litigation
IN the state courts by favorable rulings
In the Chicago case.