Moor v. Texas & NOR Co.

• Decision Date: 13 February 1935
• Docket Number: No. 7629.,7629.
• Citation: 75 F.2d 386
• Parties: MOOR v. TEXAS & N. O. R. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

75 F.2d 386 (1935)

MOOR v. TEXAS & N. O. R. CO.

No. 7629.

Circuit Court of Appeals, Fifth Circuit.

February 13, 1935.

Thornton Hardie, of El Paso, Tex., for appellant.

Maury Kemp and M. Nagle, both of El Paso, Tex., for appellee.

Before BRYAN, SIBLEY, and WALKER, Circuit Judges.

WALKER, Circuit Judge.

By bill in equity the appellant prayed that the appellee, Texas & New Orleans Railroad Company, be enjoined from refusing the shipment of cotton bales tendered, as alleged in the bill, by appellant to appellee for shipment in interstate commerce, and for a mandatory injunction directing the appellee to accept the sums alleged to have been tendered and the shipments of cotton which may hereafter be tendered of the same character as those referred to in the bill, and that appellee be required to transport such cotton bales in interstate commerce from Clint, Tex., to New Orleans, La. The bill was filed on October 23, 1934, and, as it was amended, contained allegations to the following effect: Appellant is the owner of more than 3,500 acres of land in El Paso county, Tex., adjacent to Clint, Tex., which is situated on the railroad line of the appellee, which operates a line of railroad from Clint, Tex., to the Texas-Louisiana boundary, where it connects with other lines of railroad, which, in connection with appellee's line, transport goods, wares, and merchandise in interstate commerce from Clint, Tex., to New Orleans, La., and at that station appellee regularly receives articles of freight, including bales of cotton, for shipment in interstate commerce to New Orleans, La., at a regular rate or tariff, duly adopted, and approved by the Interstate Commerce Commission of the United States of America. The amount of cotton raised on said land during the year 1934 is sufficient to produce a total of approximately 2,500 bales of lint cotton of the average weight of 500 pounds. Appellant has already ginned 1,833 bales of lint cotton. Appellant has obtained tax exemption certificates, provided for by section 6 of the Act of Congress, approved April 21, 1934, 48 Stat. 601, known as the Bankhead Act (7 USCA § 706), for 855½ bales of cotton. Those tax exemption certificates were obtained after the appellant had made a written application, dated August 17, 1934, for tax exemption certificates and allotment under the terms of said act, and regulations thereunder. That application contained the following provision: "In making this application the operator agrees to comply (1) with the terms of the act and (2) with such regulations as have been heretofore or may hereafter be prescribed by the Secretary relating to the administration of the act and also (3) with such conditions and limitations on the production of agricultural commodities by the operator as the Secretary may, from time to time, prescribe to assure the cooperation of such operator in the reduction programs of the Agricultural Adjustment Administration and to prevent the expansion on lands leased by the Government of competitive production of agricultural commodities other than cotton." By his financial necessities, and in order to obtain cotton bale tags, appellant was compelled to sign that application, "but Plaintiff received no consideration for signing said instrument, and signed the same under compulsion and duress, as above set forth." On October 18, 1934, appellant tendered to appellee 10 bales of cotton without any bale tags attached thereto, for shipment in interstate commerce over lines of railroad of appellee, and connecting carriers, from El Paso, Tex., to the city of New York, and on the same date tendered to appellee at Clint, Tex., 10 bales of cotton, which had no bale tags attached thereto, for shipment in interstate commerce from Clint, Tex., to New Orleans, La. When each of those tenders was made, appellant tendered to appellee payment in cash of the freight charges applicable to such shipment, and tendered full and complete performance of all requirements fixed by the tariff, and approved by the Interstate Commerce Commission, applicable to such a shipment. Appellee refused to accept said shipments, and refused to transport said cotton in interstate commerce between said points solely because of the fact that the tendered bales of cotton had no bale tags attached to them as provided by the abovementioned act, and because of the penal provisions contained in that act. Appellant's cotton heretofore tendered and which he intends to tender to appellee was and is to be shipped by appellant to New Orleans, La., and thence to Liverpool, England, for sale there, and said cotton is ordinary short staple cotton. The concluding paragraph of the original bill follows: "Plaintiff has no adequate remedy at law, and to secure the measure of relief afforded by suits for damages Plaintiff would be required to file a large number of suits based upon the several acts of the Railroad Companies in refusing to accept shipments, and Plaintiff can only secure an adequate remedy and avoid a multiplicity of suits by obtaining equitable relief of the character sought in this proceeding." The appellee filed an answer to the bill as it was amended, and also a motion to dismiss it, on the ground, among others, that appellant has a plain, adequate remedy at law. On the submission of the cause on the pleadings, including the motion to dismiss, and the evidence, the court on November 5, 1934, after making findings to the effect that the evidence did not show that appellant had exhausted all legal remedies, or that appellant will, by reason of the matters alleged in his bill of complaint, suffer irreparable injury and damage for which he had no adequate remedy at law, rendered a decree dismissing the cause.

In behalf of the appellant it was contended that, by reason of the constitutional invalidity of the above-mentioned act, the ground on which appellee refused to accept for shipment in interstate commerce untagged bales of cotton tendered and expected to be tendered constitutes no excuse or justification for such refusal, and that appellee's action with reference to such cotton was without any legal justification or excuse. If appellee's action in refusing to accept such cotton for transportation in interstate commerce was wholly wrongful, the appellant was not entitled to maintain this suit in equity without showing that no adequate legal remedy for the redress of such wrong was available to him. In our opinion, such showing was not made by either pleading or evidence. For a wrongful refusal by the appellee to accept and transport lawful goods duly tendered by the appellant, the latter had his action at law for damages resulting to him from that wrong. New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 382, 12 L. Ed. 465; York Co. v. Illinois Central Railroad, 3 Wall. 107, 18 L. Ed. 170. In the absence of any allegation as to the solvency or insolvency of the appellee, it is presumed to be solvent and subject to be coerced into paying damages adjudged against it in favor of appellant. At the time this suit was brought, the only statute forbidding the transportation, except for storage or warehousing, of bales of cotton to which prescribed tags were not attached, applied only to bales of cotton grown in the year 1934. Section 2 of the Act, 48 Stat. 599 (7 USCA § 702). There were no allegations or evidence of facts supporting the conclusion that appellant would be required to file a large number of suits based on many refusals by appellee to accept for shipment...