89 F. 961 | U.S. Circuit Court for the District of Southern New York | 1898
I am right in the assumption that this is a motion for a preliminary injunction, am I not?
Mr. CHOATE. Yes.
LACOMBE, Circuit Judge (orally). This is a case, undoubtedly, of very great importance; and it is, moreover, one of those cases in which the most important object is to secure the earliest final determination of the ease. Undoubtedly, it will go to the supreme court of the United States eventually, whatever may be the decision of any of the lower courts or of the circuit courts of appeal, and it is most desirable to get.it there as expeditiously as it can be sent. The delay which would be incurred by taking the case under advisement, on briefs, and holding it for weeks, perhaps, in order to study the case and write an opinion, which, in orderly sequence, would be but the first of three, would simply work a delay and accomplish no good purpose, especially in view of the fact that it is mainly a question of the interpretation of an act according to its intent, which is always a matter of great uncertainty, and sometimes leads to the most startling results, as in the case of the Holy Trinity. Under those circumstances, it
I start with the proposition that as between individual citizens, whether they be natural individuals or corporations, common carriers, or what not, originally there is the right to agree as to who should bear the burden of the service rendered, and of all the incidents of the rendition of that service. That a common carrier is subject to regulations by congress as to limitations upon his power to make such agreement with the individual citizen is not disputed. The proposition, however, is, has congress prohibited in this particular case the carrier from requiring the shipper to pay the increased expense of performing the act of transportation which the purchase, affixing, and cancellation of this stamp cause the carrier in the first instance to incur? There is no express language in the act, that I can find, laying the burden of that prohibition upon the carrier; and inasmuch as restrictions of the right to contract, which is a right of a great deal of importance and value to the citizen, whether he be an individual or a corporation, should not be spelled out of any uncertain language, or found to exist unless the case is abundantly clear, I am induced, in the absence of express language, to reach the conclusion, upon this mere cursory hearing of the oral argument, and without the careful analysis and examination of the cases which might perhaps lead me to a different conclusion— I am constrained, I say, to reach the conclusion that the act has not prohibited the carrier from requiring the party tendering the goods to pay to the carrier the increased sum which the act of congress has made the particular act of transportation cost the carrier. I shall therefore deny the motion for a preliminary injunction.
I will speak to my associates, and if your papers are printed and ready, with the briefs, before the December session, I have no doubt they will take it up at an early date, and a decision may be reached by the 1st of January. Or (and it seems to me the wiser course) if counsel will now, by agreement between them, go to work and put in the answer (if one is not in), and prepare an agreed statement of facts, to embody what is in these affidavits, and lay the case before me as if I was sitting resularly in equity, I will make a final decree dismissing the bill for lack of equity; and that is appealable eventually to the supreme court of the United States. You can put it in that shape in the course of three or four days, and get it printed for the December session; and, if the supreme court will be as good to
With your permission, we will confer at the earliest possible moment, and then submit to yoiir honor the result.
