171 F. 223 | U.S. Circuit Court for the District of Middle Alabama | 1909
(after stating the facts as above). Respondents move for a reference to ascertain the various amounts due passengers and shippers on account of the charges made by the carriers, while the preliminary injunction was in force, in excess of the rates fixed by the several acts of the Legislature, and their payment now that the preliminary injunction has been dissolved. This motion is met by a counter motion to suspend any right of action on the bond on behalf of such shippers and passengers, until the legality of the rate shall be finally determined in this cause, and to modify the terms of the bond so as to clearly show the liability of the carriers thereunder depends upon the final decree in the cause.
Looking alone to the letter of the bond, no liability accrues until the injunction is dissolved or vacated as having been “wrongfully issued,” or until it is determined that the rates, whose enforcement was sought by the bill of complaint to be enjoined, “should be or should have been enforced, or should not have been enjoined or suspended.” The Circuit Court refused to dissolve the injunction, and upon appeal to the Circuit Court of Appeals the injunction was dissolved, not because it was “wrongfully issued,” but because there had been no cross-examination of witnesses, and because, as the majority of that court considered, the matters about which they testified were largely expert opinions, and speculations of interested parties, and because in that state of the case the evidence did not sufficiently overcome, in the absence of actual test, the presumption of the reasonableness of the rates. That court made no decision whatever as to the merits of the litigation. It did not even intimate what the final result should be; that depending upon the final proof, which neither that court nor this court could have before it, when the preliminary injunction was issued and dissolved.
However, had there been a dissolution of the injunction as “wrongfully issued,” still the bond then provides that the complainant “shall pay or cause to be paid all loss or damage caused by the granting of the injunction, including overcharges or excess rates or charges to every person or firm, company or corporation, which shall sustain any such loss or damage as aforesaid, or pay any such overcharge, excess rate or charges aforesaid.” Until it shall have been determined that the rate charged exceeded the legal or just rate, as contradistinguished from the statutory rates, it cannot be said that the parties have sustained any loss or damage; and so, also, it cannot be determined whether the rates charged exceeded the legal or just rates, as contra-distinguished from the statutory rates, until the final determination of the cause. So that by the very terms of the bond no liability can arise until it has been finally determined in the cause that the rates charged by the carrier are unreasonable and unjust. The purpose of the preliminary injunction was to preserve the rights of the parties, as far as possible, without entailing any risk of loss on either, until the final proof determines what is the proper rate, and who is the person-to finally bear the loss. The whole purpose of the injunction and of the suit would be defeated, if it now be held that the bond must be enforced without waiting for the final outcome of the litigation.
Besides, it is universally held, in the absence of specific statutes con
A decree will he entered granting the prayer and motion- of complainants, and refusing the motion of the respondents.