The weekly times-record. (Valley City, N.D.) 1912-1922, 1922-02-02
ARGUMIiT OF
ATT, NEY COMBS
Part of Answ to Attorney Tracy
Bangs Be q City Council

FIR. Bangs st rs to claim that the
Telephone Company is unquestionably
right in it's attitude concerning the
advancement of its rates in this city,
notwithstanding the contract, as en-
bodied in the ordinance passed by the
city and accepted by the Company in
1912 and wherein the maximum rates
that the company is to charge are
fixed and determined. It follows as
a matter of course from this position
that the company either views the
contract as void for lack of authority
on the part of the city to enter into
it, or that conceding it to have been
valid at the time of the passage and
acceptance of the ordinance embody-
ing it, the act Of the Legislature of
1919, which purports to lodge the
power of the state to regulate rates
of public service corporations like the
defendant company in the Railroad
Commission of this state, abrogated
the contract between the city and the
telephone company.
He also insists that in proceed
ing had before the Railroad Commits
sion of this state and in an. appeal
to the United States Court from an
adverse decision of said Railroad Com
mission, the right Of the company to
raise it's rates for service in Valley
City has been conclusively established
and lastly, he contends that the sit
uation with respect to fixed charges
and expenses with which the company
is and for long time has been con-
fronted is one which requires an ad-
vance of rates if it is to make prof
it in it's enterprise. 1t seems to us
that the position assumed by the
company upon these respective
grounds is unsound.
In the first place, as we understand
Mr.. Bangs, he believes that the power
to make rates is included within the
police power Of the state, and that
the police power of the state cannot
be delegated to any subdivision OF
the state, like a city, village or a
school district. am not prepared
to concede this principle. I do not
think that the police power Of the
state is so comprehensive as to de-
prive political subdivision thereof
of the right to make favorable con-
tract concerning local rates of tele-
phone company in exchange and in
consideration for substantial and val
liable privileges in the city's streets
and alleys and public grouds given
that company in an ordinance duly
passed and officially accepted by the
parties interested.
Second, if the contract involved
was valid (and Mr.. Bangs now admits
that he thinks it was) at the time it
was embodied and enacted in the or
dinance and accepted by the telephone
company, l do not believe that it was
abrogated by the legislative act OF
1919 purporting to grant the Railroad
Commission the exclusive power to
make and control rates of public ser
vice corporations in this state, because
in my judgment such an act would
be in contravention Of the provision
of the Constitution of the United
States which declares in substance
"'that no state shall pass any law I'M
pairing the obligation of contract"
If Mr.. Bangs contention with respect
to the abrogation of the ordinance
contract under discussion is correct,
then it follows that it was abrogated
by the act of the legislature cited,
and if this is true, how can that act
be reconciled with the provision of
the Constitution of the United States
quoted? 1t seems to me that such
cannot be done and that for the rea-
son stated the act Of the legislature
relied upon by the company to terml-
nate the contract has no force or ef-
feet in this particular case, because
it is unconstitutional. Of course the
lawyers present expect me to cite the
Dartmouth college case at this point.
Third. There is another reason why
it seems to me that the city's posit-
ion in this litigation is correct and
that it is entitled to the relief that it
seeks from the courts in the premises.
The ordinance contract involved was
passed and accepted in 1912 and per-
haps before that date. It was immed-
lately acted upon by the telephone
company and think that it has at
least once, if not oftener, applied to
the City Council for an extension OF
it's rights under the contract. It has
for all of these years since the adop-
ton of the ordinance accepted and
enjoyed all of the benefits that have
accrued to it by virtue of the privi-