.690

FEDERAL REPORTER,

v.ol. 62.

thlYl The injunction practically amounts' toa stay of .execution 9nthe ,final deeree of the supreme court of the United .statel!l"whi4h not only recognized the sum secured by the lien as ranlt, ibut also directed that in default of its payment thepropeJ;'tY'should be solddo enforce it within 20 days; To this it;he holders of the certificates were privies, since it was a decree.:roade on an intervention in the record wherein the receiver's certificates were. ordered to be issued. It follows, therefore, that as the injunction restrained' the enforcement of the decree of the suprellle:court of the .States, :lUll, had the effect' of setting at naug1J.tits mandate, it was improvidently granted,and should be dissolved; The injunction is therefore dissolved,and the case remanded' 'to the court below for further proceedingij inconform-ity with this opinion. .
,

-.'

"

SHINKLm, WILSON & KREIS CO. et aI. v. LOUISVILLE: &N. R. CO. et al. (Circuit Court, S.
:,.: ,":1 ,-' -

D.

Ohio, W. D.

-,

July 30, 1894.)

.:'

PreJ»1linary injunction to compel a carrier. to obey an order of the Incommerce ,commlssiQD. in reference. to fJ;eightrates '1IJ14 lPtp,luJ;actures sb.0:u1,d denIed Where the !hat the rates. clJ.a,rges and. Which were passed on by thecommlssuon were or unjust.

.4

1'0 OBEY. ORDERS OF

COMMJ8SIOl' ·

Wilson & Kreis ,CO. and othe:rs obtained ,a preliminary irijunctiQu :against the Louisville & Nashville Railroad Company, without :notice to it, compelling it to obey an order of the interstate commeree>commission. to, the granting of the order defendaut.ffied lIn ,answer putting in .issue the material facts alleged ip. the petition. Defendant moves to discharge the order. Order dissolved. for complainants. Ed. Bader,> for defendants. .. The only matter now for consideration LURTON, (!ircuit is as to the. continuance of a restraining order granted without notice to the 1Iottisville &' Nashville Railroad Company, upon a petitionflled bya number ,of manufacturers and merchants of Oincinnati, hi behalf of themselves and all other shippers in like situation, to obtain such injuuctions or other process as will compel the Louisville & Nashville RailroadOompany to obey an ord,er· made by the. interstate' commerce commissiou in reference to Qn merchandise and manufactures shipped from Georgia, Cincinnati to. a, number of junction points in Alabama,.an<lddJssissippL On complaint of tlieFreight Bureau ()f theOin6iUllati chamberOfcomtnerce that certain railroad and' steamlfhip eompaniesl'QSsociated together under the n'ame of· the "Southern Railroad! & Steamship' Association," were violating,certain provisions of the interstate commerce act, entitled "An act to regulate commerce,"approved February 4, 1887, and

SHINKLE, WILSOl\i

&i

KREIS CO. V. WurSVILLE & N. R. CO.

691

the amendatory acts of Marcb 2, 1889, and February .10, 1891, it was that the schedule of freight tariffs enforced between Cincinnati and certain designated points in the southeast were unreasonable and unjust, and operated to discriminate against Cincinnati, and in favor of New York and other eastern cities having commercial relations with the same territory. The said commission thereupon fixed what it declared to be a maximum rate upon those classes of freights embracing merchandise and manufactures between Cincinnati and Knoxville, in Tennessee, Atlanta and Rome, in Georgia, Birmingham, Anniston, and Selma, . in Alabama, and Meridian, in Mississippi, and required that the Louisville & Nashville Railroad Oompany should desist from charging or collecting for or upon freights from Cincinnati to said other places any higher rates than such. as had been determined by it to be just and reasonable. The petition alleged that the railroad company, pending the· proceeding before said commission, voluntarily reduced its rates to the points named to a rate below the maximum allowed by the said commission. It charged that said company now proposed to relltore the rates held to be unjust and unreasonable, and had given notice of such restoration of rates, to take effect August 1,1894. The petition seeks a temporary injunction, pending a hearing, and a perpetual injunction, on final of any rate in excess of those fixed hearing, against the by said commission as reasonable. . The petition was presented to the Honorable William H. Taft, U. S. Circuit Judge, who, upon an ex parte hearing, granted a restraining order in accordance with the prayer oHhe petition. That order was as follows:
"And the court fllrther orders tha.t in the meantime, and until the further Qrder of court, as hereinafter further provided, upon and after the first day of August, 1894, or at any· other time, the said defendant the Louisville & Nashville Railroad Company do not proceed to charge or collect for or upon freights from Cincinnati to said other places specified· above at any higher rates than as in the words and figures above set forth; and that during the same time it do not proceed to charge or collect for freights from Cincinnati to places Contiguous to said other places named above at any higher rates than such as are in keeping With, and relatively proportionate to, specified rates; and that a temporary restraining order be issued and served forthwith upon the said defendant the Louisville & Nashville Railroad Company to said effect. This order, temporarily restraining said defendant, however, is made with the reservation of the right on the part of said defendant to apply by motion for its dissolution, upon two full days' notice to counsel for the plaintiff at Cincinnati, to the Honorable John W. Barr, district judge designated to sit in this district, in court, or in chambers at Louisville, Kentucky. or to the Honorable Horace H. Lw'ton, circuit judge, in court, or in chambers at Nashville, Tennessee, and upon the condition of the stipulation of counsel for the plaintiffs, now made and ordered to be filed herein, agreeing to the hearing of such motion for dissolution upon the notice aforesaid. This order is made simply on prima facie case made by decision of commission, and is without prejudice to a full consideration of the questions of law and fact on motion to dissolve."

The Lousiville & Nashville Railroad Company, subsequent to the granting of the above order, filed an answer putting in issue many of the .material facts charged in the petition, and denying, in the most emphatic terms, that the rates of freight ·fromCincinnati to

692

FEDERAL REPORTER,

vol. 62.

the points' named, declared, by the commission unjust and illegal, and to operate as a discrimination against Cincinnati and in favor of 'eastern points, a.re urjust or unreasonable, and that the decision to that effect,upon the facts submitted to the interstate commerce commission, was erroneous and unjustified. It explains that the reduction made in rates was made in an emergency, for the purpose of preventing secret injurious contracts made by railroads and in violation of agreements between it and said other roadsl' ;and of the interstate commerce acts; that the reduced rate was in ,force but a few days when the notice complained of was given, that the rates in force for years would be restored August 1. They deny in the most positive terms that the schedule ot rates which they now propose to restore to the same figure at which they were at the time of the hearing before the interstate commerce commission isunjnst or illegal. In pursuance of the term,) of the restraining order above set out, counsel for the de· fendantrailway have given notice, and have moved to discharge said Upon the questions thus presented, full and elaboratb arguments have been made by counsel representing both the peti· tioners and the railway company. The order made by JUdge Taft was granted withont notice. The right to a full hearing is SO pointedly recognized in the order made that I feel' no embarrassment in now passing upon the question as if an original application for a preliminary injunction. Such an injunction never issues as of right, but rests in the sound discretion 01 the court. In order to obtain it, the plaintiff should show either that his right is very' clear, 'or that the injunction will operate with but little injury to the defendant, if granted, and that, if refused, the injury to himself will be very great. Fost. Fed. Pro § 233, and cases cited; 1 High, Inj. § 7; 2 High, lnj. §§ 938, 939, 1026. Where the inconvenience to result is equally divided, or the preponderance is in favor of the defendant, it will be refused. Flippin V. Knaille, 2 Coop. Ch. 238; Owen v. Brien, ld. . 295. Neither is a plaintiff entitled to a preliminary injunction where his rights depend upon unsettled and disputable questions of law. Jersey City Gaslight CO. V. Consumers' Gas Co., 40 N. J. Eq.431, 2 Atl. 922; National Docks R. CO. V. Central R. Co., 32 N.J. Eq. 755; 1 High, lnj. § 13; 2 High, lnj. § 1026; Citizens' Coach Co. v. Camden Horse-Railroad Co., 29 N. J. Eq. 299. I am of opinion that this is not a proper case for a preliminary injunction. 1. The right of the petitioners is yet to be established. The oPihion of theillterstate commerce commission has not' the effect ot ,a judicial determination. If a carrier refuses to acquiesce in an order made by that commission, it 'can only be coerced by a proceeding ina United States court. The mode and right of procedure in this court is by petition illed by the commission, or anyone interested, setting out the disobedience complained of. Power is then given thecomt to hear and determine the matter, "in such manner alit to do justice in the premises." The act then provides that, on the hearing of the' thus submitted,

SHINKLE, WILSON & KREIS CO.

v.

LOUISVILLE & N. R. CO.

693

"the findings of fact in the report of said commission shall be prima facie evidence of the matters therein stated." If it shall then appear, on all the evidence heard and submitted, that the order of the commission was lawful and reasonable, and that it has been violated, it shall be lawful for such court to issue a writ of injunction, or other proper process, to prevent further disobedience of such order. Now, it is well settled that the court is not the mere executioner of .the orders of the commission. The suit in this court is an original and independent proceeding. This court is not confined to a mere examination of the matter as heard by the commission. It proceeds to hear the complaint de novo. On that hearing, the findings of fact are evidence operating to make out a prima facie case in favor of the conclusion reached as to the fact of a violation of the interstate commerce act. Kentucky & I. Bridge Co. v. Louisville & N. R. Co., 37 Fed. 613; Inter· state Commerce Commission v. Atchison, T. & S. F. R. Co., 50 Fed. 295; Interstate Commerce Commission v. Lehigh Val. R. Co., 49 Fed. 177; Interstate Commerce Commission v. Baltimore & O. R. Co., 43 Fed. 43; Interstate Commerce Commission v. Cincinnati, N. O. & T. P. R. Co., 56 Fed. 926. The answer denies most distinctly that the rates about to be restored, and being the same rates passed UpO:.l by the commission, are unjust or unreasonable. It denies that those rates operated to discriminate against the commerce of Cincinnati and in favor of eastern cities. If it be assumed that, upon an application for a preliminary injunction, the report ()f the commission is to be regarded as making out a prima facie case of illegal rates, that effect, on such an issue, is lost when an issue is made by a sworn answer upon the principal conclusions of the report. 2. The very wide scope of territory affected by this report, and 1;he great importance of the questions of fact and law arising thereon, demand most careful investigation. Many important and unsettled questions of law are involved, and will demand considera· tion. This should make a court cautious as to the granting of a preliminary injunction, the only relief finally sought being a per· petual injunction. It seems to me that section 16 of the interstate commerce act only contemplates an injunction as the final result of a hearing on pleadings and proof. Certainly, no court has yet granted such preliminary injunction. Many cases such as this have been brought, but no preliminary injunction appears to ever have been issued. In the case of Interstate Commerce Commission v. Lehigh Val. R. Co., 49 Fed. 177, a motion was made for a preliminary injunction, which was fully considered by Acheson, circuit judge, and Butler, district judge, and refused, although the injury to result from its being granted was nothing to that likely to result here. 3. The injury which petitioners will sustain if injunction is now refused, in view of the sworn denials of the answer as to special damages, would consist in being obliged to pay greater rates than defendant is authorized to demand. But the excess paid would be..asimple matter of calculation, and it is not alleged that the

694

. I:.

-1,

J'EDEBALt BERORTEB,

,vol. 62.

/'

defendant responsible.. That. there are many others, not paJ.'ties"equally ;interested, only ,comes to iVhis,:that the defendant maybe with many' 'suits unless,· in the· event of an adverse· decision, it voluntarily restores the excessive charge it will have received. On: :the other hand, if· a prelilninary injunction be now granted, it would likely stand until final hearing in the /ilupreme'.court. In the meantime, the defendant would lose a sum· stated .in, the sworn answer as amounting, on business originatlng in Oincinnati alone, of upwards of $100,000 per year. A 10l).gadherence to a, lower schedule of rates would render it (liffiGlllt,o restore the oldl'ates maintained, with occasional exceptionsJdor.years. In addition, theeffe<Jt of enforcing the rates from. Ciilcinnati to the desiguated points would inVOlve a readjustment from dUes contiguous to Cincin:na'ti, and having commerce in the ,.same southern ,territory. The 'balance of inconvenience seeIl).i$, to, be on the side of the defendant. For these reasons, it seema, ,to; me that a' preliminary injunction ought not to issue, and thattberestraining order should be dissolved. . no opinion nponany of the questions involving the merits. .AnN reasonableoroer tending to speedy preparation and trial'of"thismatter will be made on application. In the,meantime, hils ol1dered that plaintiff file replication to the answer; and that the cause then stand at issue.
CITY OF· NORTH MUSKEGON' Gourt of

1.

v.

CLARK.. June 5, 1894,)

Sixth .CirclJ.!t.

No. 170. , .. Judgment temiered aga!nSt"a plaintiff on .demurrer to his declaration, because,{it,does'not essential to a recovery;' is no bar to a second sUit,bYliil;ll on the same cause· of action, wherein the declaration, in stating the cause of action; avers the fact· previously omitted, Goodrich iV, 'Chicago, 5 Wall. 556. and Alley v. Nott, 4 Sup. Ct. 495, 111 U. S. 472nHflt1nguished.·· ' ., ,
RES JrlDtcATA.:"":JUDGMENT,'()* fblllM:URRER.

.,

'..

2.' ABATEME1N'T4>FoRMER . TO PLEAD. iPendeD,cY of ,a formel1 suit fpr the same cause of action can be availed: of as a only by plea Wabatement. ' . .
8. SAME-STATll:, AND' Fll:Dll:RALQOl,JRTS.

Pendency of the same aetlpn in a state court is not :a good plea, even , in'abatement; in a federal· court, though it has concurrent territorial juris, diction with .the s t i J t e o o u r t . ·

, .

'

This writ of, error tbe judgIDent of the clrcllit conrt for the western district of. Michigan. Bridget Clark, the. plaintiff helow, l\. citizen of the state of' York, filed :her aeclaration setting forth a plea of trespass on the: caae· agamst: thel city· of North MUskegoh,' a municipal cot·,

)Ii Error States for the Western Sputhe,rn DiVision. , , District of ,Tllis, .wag' a:n .!lction by. against (he city of North The jury found ,f@r plaintiff, and Muskegon illdgm,ent ,W.ll-iIitiff wl:\S on the verdict. Defendant brought errol'.: " .,' , , ' .. .'