64 F. 981 | U.S. Circuit Court for the District of Southern Ohio | 1894
(orally). The motion for a preliminary restraining order, to continue in force until the hearing and decree in this case, must be overruled for the following reasons:
1. A like motion, made upon the filing of the petition in the case of Shinkle, Wilson & Kreis Co. v. Louisville & N. R. Co., 62 Fed. 690, on the same order of the commission as is here involved, was overruled by Judge Lurton, of the circuit court, after full argument.
2. Independently of the fact that Judge Lurton has passed upon the question involved, this is not a case for a preliminary injunction. The question to be considered and decided is whether the defendant railroad companies are trespassing upon the rights of their shippers by charging freights in excess of the order of the interstate commerce commission. That question has not yet been judicially determined. It has been held that the interstate commerce commission is not a court. It is an administrative body (see Commission v. Brimson, 154 U. S. 447, 474, 489, 14 Sup. Ct. 1125), lawfully created, and lawfully exercising powers which are quasi judicial, as are the powers exercised by the commissioner of patents, and, in many respects, by the heads of the various departments of the executive branch of the government. Its rulings and decisions are entitled to the highest respect of the federal courts, and they are justly so regarded. Nevertheless, the questions involved in the petition and answers in this cause are now for the first time presented for judicial determination. A court of equity will not ordinarily grant an injunction to prevent a trespass, before it has been found to be a trespass by a court, or a court and jury. Even in patent causes, for infringement, preliminary injunctions are not granted -unless the exclusive right of the patentee has been determined by the adjudication of a court of competent jurisdiction, or has been so long and generally acquiesced in by the public as to remove, practically, any serious doubt upon the subject. They are issued to prevent injury to a clear right. To grant the motion in this case would be like allowing execution before judgment. The question of right,-upon
3. It is a well-settled principle with reference to the granting of preliminary injunctions that tire comparative inconvenience and injury to parties must be looked at, and that they will not be granted where tin;, injury to the defendant is likely to be greater than the benefit to the coznplainant. In this case, if the defendants are restrained from charging or collecting freight in excess of the rates fixed by the commission, they will be practically without remedy, if at last the order of Huí commission should be held to be unlawful. On the other band, if Hie shippers continue to pay the rates hitherto paid the excess will be distributed among them, and the injury to each will be comparatively slight. Moreover, if these companies be compelled, pending this litigation, to lower their rates from 20 to 25 per cent, (which, it is slated, would result from the issuing of a preliminary injunction), the understanding being that if the order of the commission should he set aside the former rates will he re-established. (he result, would he to stimulate excessive and speculative shipments, which are always productive of injury to legitimate business.
4. The section of the act to regulate commerce, under which this petition is tiled, directs that there shall he a speedy hearing and determination of the matter. It will he the duty of this court to enforce that direction. The cause will he brought to a speedy hearing. There will be no considerable delay. Within 60 days the hearing-will he had, and no great hardship will result from leaving matters as they are in the meantime. The alternative suggestion, that if the defendants he allowed to charge and receive present rates they he required to keep an account with every shipper, and to pay into the registry of this court the excess, the same to he disposed of after the hearing as the court may order, does not commend itself to the approval of the court. This is, in effect, an application for a rule nisi, which ought not to he granted unless there is a very strong showing of right in favor of the complainant, which would authorize the granting of a preliminary injunction, and, on the other hand, sufficient showing of probable injury to the defendants to authorize an alternative order, as, for illustration, to give bond and keep and file an account.
The question has also been submitted to the court whether the transcript of the evidence taken before the commission is a part of the record, and therefore to he filed and used in this court, as a matter of right, by the commission or by the defendants. Section 12 of the act (24 Stat. 37!)) empowers the interstate commerce commission to require the attendance and testimony of witnesses, and authorizes the taking of depositions. Section 14 makes it the duty of the commission, whenever an investigation shall he made by it, to make a report in writing in respect thereto, which shall include the findings of fact upon which the conclusions of the commission are based, and such findings shall thereafter, in all judicial proceedings, he deemed prima facie evidence as to each and every fact found. The commission is authorized to provide for the publication of its re